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

27. Februar 2024 | State Aid Uncovered von Phedon Nicolaides

A Large Regional Investment Project in Spain

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Introduction Most State aid to “large” investment projects is granted by the Member States in Central and Eastern Europe. Moreover, most of the aid goes to induce companies to locate their projects in those countries and to overcome regional handicaps that make the investments less profitable or even loss-making than in other locations. By contrast, regional aid granted to large […]

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20. Februar 2024 | State Aid Uncovered von Phedon Nicolaides

Another Case of Indirect State Aid

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Introduction On 19 May 2021, the General Court, in case T-643/20, Ryanair v Commission, annulled Commission decision SA.57116 by which it authorised State aid in favour of KLM in the context of the measures implemented by the Dutch government to address the covid-19 pandemic. In July 2021, the Commission re-adopted its original decision without the errors that had been identified […]

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13. Februar 2024 | State Aid Uncovered von Phedon Nicolaides

State Resources, Control and Imputability

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Introduction A public measure can be classified as State aid only when it is funded from state resources. Measures funded from the budgets of public authorities are always considered to be supported by state resources. However, measures not funded from state budgets may still be supported by state resources. This is because, rather counterintuitively, the concept of state resources covers […]

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6. Februar 2024 | State Aid Uncovered von Phedon Nicolaides

Indirect Beneficiaries of State aid

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Introduction The prohibition of State aid in Article 107(1) TFEU applies both to direct and indirect beneficiaries. The direct beneficiary is the formal recipient of the aid. However, the formal recipient may only act as an intermediary through which aid flows to third parties or may in fact be required by the aid measure to pass on some or most […]

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30. Januar 2024 | State Aid Uncovered von Phedon Nicolaides

Non-contractual Liability in the Field of State aid

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Introduction The Commission, in its control of State aid, occasionally makes mistakes. EU courts may annul erroneous Commission decisions. This raises the question whether affected undertakings may ask for compensation. The answer is that in order to be eligible for compensation, an undertaking must have suffered damage as a result of an error that constitutes a “serious breach” of EU […]

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23. Januar 2024 | State Aid Uncovered von Phedon Nicolaides

Public Service Compensation and Indexation of Costs

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Introduction Member States may impose public service obligations [PSO] on undertakings and compensate them for the extra costs they incur. The public service compensation [PSC] may also include reasonable profit. Naturally, the PSC may not cover costs that are not related to the PSO or the service of general economic interest [SGEI]. So, for multi-service providers, account separation is absolutely […]

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16. Januar 2024 | State Aid Uncovered von Phedon Nicolaides

Undertakings May also Carry out Non-economic Activities

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Introduction An undertaking is any entity that carries out economic activities regardless of how it is classified in national law or how it is financed. The General Court, in its judgment of 20 December 2023, in case T-166/21, Autorità di sistema portuale del Mar Ligure occidentale v European Commission, also clarified that if an undertaking also carries out tasks assigned […]

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9. Januar 2024 | State Aid Uncovered von Phedon Nicolaides

National Court May Order Recovery of Illegal Aid that Is Considered Existing Aid

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Introduction The European Commission is required by Regulation 2015/1589 to order recover of State aid that it finds to be incompatible with the internal market. However, it may not order recovery of illegal aid – i.e. non-notified aid – until it assesses its compatibility with the internal market. By contrast, national courts have no competence to assess the compatibility of […]

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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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23. Mai 2023 | State Aid Uncovered von Phedon Nicolaides

The Temporary Framework Allows Member States to Grant Aid only to SMEs

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Introduction Although discrimination is in general prohibited in the EU, the fact remains that in the field of State aid Member States may grant State aid only to certain companies and may also decide how much aid to grant. That the granting of State aid relies solely on the discretion of Member States has recently been re-confirmed by the General […]

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16. Mai 2023 | State Aid Uncovered von Phedon Nicolaides

Support for the Decarbonisation of the Electricity Sector through Storage Capacity

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Introduction Romania notified a scheme to support investment in large-scale electricity storage. The Commission approved it in decision SA.102761.[1] The scheme was part of the national Recovery and Resilience Plan [RRP] of Romania and was co-financed by the EU’s Recovery and Resilience Facility. By supporting investment in electricity storage, Romania aimed to reduce carbon emissions generated by the energy sector, […]

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9. Mai 2023 | State Aid Uncovered von Phedon Nicolaides

Development of Affordable Housing

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Introduction The provision of social housing can be designated as a service of general economic interest and can be publicly funded under the Commission decision 2021/21. Member States have to show that there is a real social need and limit access to social housing to those persons who cannot afford what the market provides; i.e. low-income or vulnerable persons such […]

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2. Mai 2023 | State Aid Uncovered von Phedon Nicolaides

State aid Scoreboard, 2022

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Introduction On 24 April 2023, the Commission released the 2022 version of the State aid Scoreboard which this year runs to a record 226 pages.[1] It covers the State aid that was granted in 2021 and contains information on both covid-19 measures and non-pandemic aid. Covid-19 related aid reached EUR 191 billion, or 57% of total aid expenditure. Non-crisis aid […]

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25. April 2023 | State Aid Uncovered von Phedon Nicolaides

German Risk Finance

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Introduction Relatively few risk finance measures are notified to the Commission as Member States use Articles 21 and 22 of the GBER to support investments in SMEs and start-ups. However, the GBER excludes from its scope tax incentives for investments by undertakings. Tax incentives are possible only for investments by private investors. For this reason, Germany recently notified an aid […]

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18. April 2023 | State Aid Uncovered von Phedon Nicolaides

Imposition of Public Service Obligations through Extension of a Concession

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Introduction It has recently been confirmed in the case law that Member States are not obliged to implement a procurement procedure when they grant State aid. This means, of course, that the public funds they provide do confer an advantage on their recipient undertakings. Compliance with public procurement procedures affects the compatibility of the aid with the internal market. Indeed, […]

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11. April 2023 | State Aid Uncovered von Phedon Nicolaides

Update of Commission Guiding Templates on Funding by the Recovery and Resilience Facility

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Introduction In December 2020, the European Commission published “templates” to help Member States in the design of their plans that were to be financed by the Recovery and Resilience Facility [RRF]. The purpose of the templates was to identify whether those plans contained State aid and, if they did, whether the aid had to be notified or not. Soon afterwards […]

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4. April 2023 | State Aid Uncovered von Phedon Nicolaides

Compensation for Damage Caused by COVID-19 Combined with Rescue Aid

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Introduction Member States are allowed to grant state to compensate undertakings for damage they suffer as a result of a natural disaster or exceptional occurrence. But, it is not always easy or possible to disentangle the damage caused by such an unforeseen event from losses caused by mismanagement or changes of market conditions. The art and science of calculating the […]

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28. März 2023 | State Aid Uncovered von Phedon Nicolaides

A More Comprehensive and Generous GBER

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Introduction In a Communication that was published on 9 March 2023, the Commission announced extensive amendments to the GBER.[1] A 100-page annex to the Communication provided the legal text of the draft regulation that would revise Regulation 651/2014.[2] The amendments aim to: Ensure consistency between the GBER and new State aid guidelines. Bring the GBER in line with the EU […]

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21. März 2023 | State Aid Uncovered von Phedon Nicolaides

Charging Infrastructure for Electric Vehicles

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Introduction As part of the EU’s Green Deal and the transition to a greener and most sustainable economy, the European Commission’s guidelines on State aid for climate, environmental protection and energy [CEEAG] also allow public support for the construction of energy infrastructures. In a recent decision, the Commission approved a German State aid scheme [SA.104749] for high-power charging infrastructure for […]

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