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

14. März 2023 | State Aid Uncovered von Phedon Nicolaides

State Aid for the Resolution of a Polish bank

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Introduction Whenever a bank seeks State aid, it must be considered as “failing or likely to fail”. A failing bank must be liquidated or resolved. Resolution means that the critical functions of the bank are preserved while the rest are wound down. Critical functions are those that impact significantly the real economy such as deposits, loans to SMEs or payments. […]

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7. März 2023 | State Aid Uncovered von Phedon Nicolaides

Tax Advantages and Competitive Bidding

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Introduction Award of contracts or sale of state assets through competitive bidding procedures or tenders are presumed to result in a market prices and to confer no advantage to the winner in the meaning of Article 107(1) TFEU. However, on 25 January 2023, the General Court ruled, in case T-666/21, Società Navigazione Siciliana v European Commission, that certain tax advantages […]

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28. Februar 2023 | State Aid Uncovered von Phedon Nicolaides

Discretion of Public Authorities and Selectivity

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Introduction On 2 February 2023, the Court of justice, in case C649/20 P, Spain and Others v European Commission, clarified the extent to which public authorities can implement general measures without in practice favouring any undertaking. The exercise of administrative discretion can turn a general measure into selective. The Court made a distinction between what may be called “related” or […]

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21. Februar 2023 | State Aid Uncovered von Phedon Nicolaides

The Selectivity and Profitability of Agreements between Airports and Airlines

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Introduction Selectivity is a tricky issue. Even a measure that appears not to favour or exclude any undertaking may in practice prove to be selective if its effects favour certain undertakings over others that are in a comparable situation. In order to determine whether they are comparable it necessary to examine the objective of the measure. This is what the […]

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14. Februar 2023 | State Aid Uncovered von Phedon Nicolaides

The European Commission in not Responsible for the Bail-in of Investors in Banks

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Introduction Investors in banks that failed or were restructured as a result of the financial crisis that broke out in 2008 have tried many times and have used many arguments to support their claims for compensation. None of them has so far succeeded before EU courts to prove that the Commission, or the ECB or the Council or the Eurogroup […]

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8. Februar 2023 | State Aid Uncovered von Phedon Nicolaides

State Aid May Have an Incentive Effect Even After the Start of Work: But Would it Favour Inefficient Operators?

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Introduction Perhaps the most important aspect of the compatibility of State aid with the internal market is the presence of incentive effect. That is, the aid is capable of changing the behaviour of the recipient. If it does not, then public money is wasted because it has no effect on what happens on the market anyway. In principle, in order […]

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30. Januar 2023 | State Aid Uncovered von Phedon Nicolaides

Cumulation of State Aid Granted by Different Member States

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Introduction The EU Green Deal and the Climate, Environmental Protection and Energy Aid Guidelines [CEEAG] allow Member States to grant more aid, in diversity and amounts, to incentivise companies to invest in greener technologies and energy. However, when multiple Member States grant aid for the same purpose, there is a risk of overcompensation of undertakings that operate across Member States. […]

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24. Januar 2023 | State Aid Uncovered von Phedon Nicolaides

State Resources Include all the Resources that Can be Directed by the State for its own Purposes

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Introduction On 12 January 2023, the Court of Justice delivered its judgment in joined cases C-702/20, DOBELES HES and C-17/21, Sabiedrisko pakalpojumu regulēšanas komisija.[1] A Latvian court requested the Court of Justice to provide a preliminary ruling on the interpretation of Article 107(1) TFEU, Article 108(3) TFEU, Regulation 1407/2013 on de minimis aid and of the procedural Regulation 2015/1589. The […]

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17. Januar 2023 | State Aid Uncovered von Phedon Nicolaides

The Private Acquirer Test: An Illuminating and also Puzzling Judgment

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A public authority may act as a market operator and acquire services through a private third party without conferring an advantage to the provider of those services. Introduction When a public authority buys a service and pays the market price it does not confer an advantage to the seller in the meaning of Article 107(1) TFEU. Even if it pursues […]

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10. Januar 2023 | State Aid Uncovered von Phedon Nicolaides

The Value of Land

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Different valuation methods do not confer a selective advantage if they generate similar results. Introduction Land or immovable property has no intrinsic value. Its value depends on how the land or property is used. In turn, how it is used is determined by several factors such as its location, and the applicable zoning rules. A plot of land in an […]

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3. Januar 2023 | State Aid Uncovered von Phedon Nicolaides

The Link between State Aid and Environmental Provisions of EU Law

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Introduction It is an established principle in the case law that the Commission may not authorise State aid that infringes other provisions of EU law, both primary and secondary. Now consider the following case. A Member State notifies to the Commission regional investment aid to support the construction of a mega factory. The factory will produce its own energy and […]

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28. Dezember 2022 | State Aid Uncovered von Phedon Nicolaides

The Consequences of not Knowing when State Aid is State Aid

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Introduction Public officials, legal advisors and academics are sometimes frustrated by the practice of the Commission of declaring a public measure as being compatible with the internal market without first taking a firm position on whether that measure constitutes State aid. The Commission would say something like “it is not certain whether the aided activity is economic in nature” or […]

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13. Dezember 2022 | State Aid Uncovered von Phedon Nicolaides

State Guarantees for Undertakings in Difficulty

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In order to detect State aid in a state guarantee, it is necessary to carry out a search to identify the market rate, if it exists. There is no general presumption that an undertaking in difficulty cannot obtain a guarantee from the market. It is necessary to consider the risk of default. The calculation of the amount of aid must […]

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6. Dezember 2022 | State Aid Uncovered von Phedon Nicolaides

Compliance with State Aid Guidelines

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For aid to be declared compatible with the internal market, all of the formal and substantive provisions of the relevant guidelines must be satisfied. State aid is granted the moment the right to a selective advantage is conferred, even if the actual benefit materialises at a future point in time. Introduction On 26 October 2022, the General Court reiterated, in […]

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22. November 2022 | State Aid Uncovered von Phedon Nicolaides

The “Arm’s Length Principle” and the Taxation of Transactions between Related Companies

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The arm’s length principle is not an autonomous principle that can be applied to any advance tax ruling. It must be provided in the national tax system. Furthermore, the arm’s length principle must be applied, if it exists in the national tax system, in the form that is defined by that tax system. Introduction In a series of decisions beginning […]

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15. November 2022 | State Aid Uncovered von Phedon Nicolaides

No Effect on Trade

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A public measure of purely local character and which does not induce cross-border movement of investors or clients is unlikely to affect trade between Member States. Introduction It is rare to find a judgment that confirms that a particular public measure is not liable to affect trade between Member States. The General Court did so in its judgment of 19 […]

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8. November 2022 | State Aid Uncovered von Phedon Nicolaides

Natural Disasters and State Aid

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Compensation for damage suffered by undertakings as a result of a natural disaster constitutes State aid. The compensation is compatible with the internal market only if, first, there is a causal relationship between the natural disaster and the damage and, second, the amount of compensation does not exceed the amount of the damage. Introduction Financial assistance in the form of […]

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1. November 2022 | State Aid Uncovered von Phedon Nicolaides

Research Organisations, their Primary Objectives and their Shareholders

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A research organisation is not required to reinvest any revenue it may generate into its non-economic activities. The fact that the shareholders of a research entity are profit seeking has no decisive impact on its classification as a research organisation. Introduction As governments push universities to engage in more collaborative research with industry, the question increasingly arises where to draw […]

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25. Oktober 2022 | State Aid Uncovered von Phedon Nicolaides

State Aid in Contracts to Provide Services

State Aid Blogs - Guest posts

The continuation of beneficial arrangements after the expiry of a service contract constitutes State aid. The practice of not charging for the use of public assets constitutes State aid. Introduction On 7 September 2022, the General Court ruled, in case T-642/19, JCDecaux v European Commission, that the free use of public infrastructure for profit confers and advantage in the meaning […]

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27. September 2022 | State Aid Uncovered von Phedon Nicolaides

Compliance with Public Service Obligations Does Not Necessarily Entitle the Providers of Public Services to Compensation

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In the field of bus or rail transportation, Member States may impose either public service obligations through a contract or regulate prices through general rules. Providers of transport services are entitled to compensation only if they are financially worse off as a result of compliance with public service obligations. Introduction It is now a well-established principle in the case law […]

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