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

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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18. Oktober 2022 | von Phedon Nicolaides

Public Authorities Acting as Private Investors

State Aid Blogs - State Aid Uncovered SM posts 5

It is a well-established principle in the case law that when a public authority acts as a private investor, it must disregard all public policy objectives and its obligations as an arm of the state. Many judgments of EU courts and Commission decisions have examined in detail the various elements that underpin the reasoning of a private investor such as […]

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11. Oktober 2022 | von Phedon Nicolaides

Selectivity of Regional Schemes

State Aid Blogs - State Aid Uncovered SM posts 4

Introduction Article 107(3)(a) areas and the outermost regions of the EU [defined in Article 349 TFEU] are more favourably treated under State aid rules. But they still have to comply with the terms of Commission authorising decisions. In case regional State aid is found to be incompatible with the internal market, their regional handicaps cannot justify any leniency in the […]

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4. Oktober 2022 | von Phedon Nicolaides

Recovery of Incompatible Aid and the Application of General Provisions for the Avoidance of Double Taxation

State Aid Blogs - State Aid Uncovered SM posts 2

The amount of incompatible State aid that has to be recovered can be reduced by any credit the aid recipient could have legally obtained from the application of general provisions of national law. Introduction The recovery of incompatible State aid has to be carried out immediately and effectively. The Commission gives guidance to the Member State concerned how to calculate […]

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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

State Aid Blogs - State Aid Uncovered SM posts 32

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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20. September 2022 | State Aid Uncovered von Phedon Nicolaides

An Innovative Scheme to Support Individual Borrowers

State Aid Blogs - State Aid Uncovered SM posts 31

Individuals and households are not undertakings. However, any public funding of individuals or households may constitute indirect aid to undertakings. Such aid may be exempted on the basis of Article 107(2)(a) TFEU. Introduction Article 107(1) TFEU applies to indirect State aid as well as to direct aid. Since all State aid has both primary effects [i.e. the benefits that go […]

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13. September 2022 | State Aid Uncovered von Phedon Nicolaides

State Aid for External Transport Costs

State Aid Blogs - State Aid Uncovered SM posts 1

State aid may be granted to reduce the difference in “external” costs caused by different modes of transport. Introduction Member States have used money from the Recovery and Resilience Fund [RRF] to support the development of less polluting and more energy efficient activities and technologies. A case in point is Spain’s scheme that incentivises the transfer of freight traffic from […]

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6. September 2022 | State Aid Uncovered von Phedon Nicolaides

Special Economic Zones

State Aid Blogs - State Aid Uncovered SM posts 29

Member States must check that the State aid claimed by undertakings established in special economic zones concern activities that are actually carried out within those zones. Introduction Several Member States have special economic zones in which companies enjoy preferential tax treatment. These zones can be divided into two categories: those that can be found mostly in the new Member States […]

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30. August 2022 | State Aid Uncovered von Phedon Nicolaides

Support for Research & Innovation in the Context of the Temporary Framework

State Aid Blogs - State Aid Uncovered SM posts 21

Introduction The Temporary Framework [TF] that was introduced in March 2020 expired on 30 June 2022. However, two provisions of the TF remain in force until 31 December 2022. They are investment support for sustainable recovery [section 3.13 of the TF] and solvency support [section 3.14 of the TF]. In the former case, individual aid must be granted before 1 […]

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23. August 2022 | State Aid Uncovered von Phedon Nicolaides

Compensation for the Net Cost of Public Service Obligations (Part II)

State Aid Blogs - State Aid Uncovered SM posts 18 1

Public service obligations must be imposed through an act of entrustment that defines clearly the terms of the service and the duration of the obligation. The “reasonable profit” in the public service compensation should reflect the risk borne by the provider. Introduction In 2009, the Commission received several complaints concerning State aid that Italy had granted to the various shipping […]

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12. Juli 2022 | State Aid Uncovered von Phedon Nicolaides

State Guarantees without State Aid

State Aid Blogs - State Aid Uncovered SM posts 15

Introduction State guarantees may constitute State aid if they are not priced at market rates. A properly priced guarantee reflects the risk assumed by the public authority that issues it and the collateral, if any, that the beneficiary undertaking can pledge. The State aid that is embedded in a guarantee that is priced below the relevant market rate is operating […]

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5. Juli 2022 | State Aid Uncovered von Phedon Nicolaides

Why Grant a Loan to an Undertaking in Difficulty?

State Aid Blogs - State Aid Uncovered SM posts 14

When a market operator invests in an undertaking in difficulty it also considers the possibility of restructuring, sale or closure. Introduction The answer to the question posed in the title of this article is “because the loan enables the undertaking to become viable again and repay the loan with interest”. It is now well established in the case law that […]

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28. Juni 2022 | State Aid Uncovered von Phedon Nicolaides

Individual Aid to Counter the Effects of Serious Economic Disturbance Is Legally Possible, but Is it Appropriate?

State Aid Blogs - State Aid Uncovered SM posts 13

Individual aid need not be capable itself to remedy serious economic disturbance in the economy of a Member State. It is sufficient that it contributes to that effect. Introduction On 22 June 2022, in case T‑657/20, Ryanair v European Commission, the General Court confirmed once more that Member States have a right to grant State aid to the undertakings of […]

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21. Juni 2022 | State Aid Uncovered von Phedon Nicolaides

The Date on which State Aid is Deemed to be Granted Is not necessarily the Date on which the Actual Benefit Materialises

State Aid Blogs - State Aid Uncovered SM posts 12

State aid is deemed to be granted even if the benefit cannot be quantified in advance and even if state resources are transferred at a future point in time. Introduction The precise date on which State aid is granted can be important such as, for example, when calculating the present value of aid granted in tranches at different points in […]

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14. Juni 2022 | State Aid Uncovered von Phedon Nicolaides

Territoriality and the Tax Treatment of Intra-group Transactions

State Aid Blogs - State Aid Uncovered SM posts 11

A special tax rule can constitute the reference or normal system of taxation if it is “severable” from other tax rules and has its own legal logic. Introduction The application of State aid rules to the tax treatment of transactions between companies that belong to the same multinational group is contentious. During the past three years or so, the Commission […]

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7. Juni 2022 | State Aid Uncovered von Phedon Nicolaides

A Rare Commission Decision on SGEI Interpreting Decision 2012/21

State Aid Blogs - State Aid Uncovered SM posts 10

A non-profit provider of free services which are in competition with similar services on the market is an undertaking. Introduction The decentralisation of State aid policy of the past decade has made it easier for the Member States to achieve their public policy objectives. By using blog exemption regulations and decisions, they can grant State aid faster, without having to […]

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31. Mai 2022 | State Aid Uncovered von Phedon Nicolaides

State Aid and Anti-Competitive Practices

State Aid Blogs - State Aid Uncovered SM posts 9

State aid to undertakings that engage in anti-competitive practices is incompatible with the internal market. Introduction For State aid to be compatible with the internal market, it may not infringe any other provision of the Treaty or secondary legislation. Occasionally, the Commission finds State aid measures to be incompatible with the internal market because they contain clauses that exclude foreign […]

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24. Mai 2022 | State Aid Uncovered von Phedon Nicolaides

Another Case of Rescue Aid to an Airline

State Aid Blogs - State Aid Uncovered SM posts 6

An undertaking does not have to be nationally “important” in order to qualify for rescue aid. Introduction The pandemic has been hard on airlines. For some of them, however, the pandemic simply exacerbated their already existing problems. On 18 May 2022, in case T‑577/20, Ryanair v European Commission, the General Court had to examine the case of State aid to […]

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10. Mai 2022 | State Aid Uncovered von Phedon Nicolaides

Risk Finance

State Aid Blogs - State Aid Uncovered SM posts 5

Risk finance aid in the form of tax relief based on the GBER must be limited to private investors. Introduction Decisions of the European Commission authorising aid for risk finance are very rare. This is the consequence of the success of the Commission to get Member States to use almost exclusively the General Block Exemption Regulation [GBER] for the design […]

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3. Mai 2022 | State Aid Uncovered von Phedon Nicolaides

The Standard of Proof in State Aid Complaints and the “Informational Disadvantage” of Complainants

State Aid Blogs - State Aid Uncovered SM posts 4

The Commission must use its investigative powers to seek clarification from Member States in order for it to establish whether a measure constitutes State aid, or is compatible aid, or is existing aid. Introduction Complaints are an important source of information to the Commission. The possibility afforded to undertakings to lodge such complaints with the Commission is intended to dissuade […]

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