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

20. Dezember 2022 | von Phedon Nicolaides

Compensation for Damage

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Introduction On 9 November 2022, the General Court followed its previous judgments in cases concerning compensation for damage caused by the covid-19 pandemic to rule, in case T-111/21, Ryanair v European Commission, that Member States were free to choose to whom to grant State aid.[1] Ryanair had sought the annulment of Commission decision SA.55373 concerning damage compensation to Croatia Airlines […]

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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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29. November 2022 | von Phedon Nicolaides

What Costs Must be Included in Compensation for Public Service Obligations?

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Introduction The two most difficult issues in imposing a public service obligation on a providers of a service of general economic interest is, first, the correct definition of the obligation and, second, the correct calculation of the amount of compensation that covers only the net extra cost of the service. The correct definition must take into account what the market […]

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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

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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

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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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15. Februar 2022 | State Aid Uncovered von Phedon Nicolaides

Compensation and State Aid

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An event that causes damage for which the state is liable is distinct from the act that confers the right for compensation. Introduction The concept of State aid covers all resources that are controlled by the state, regardless of the reason why such resources may be transferred to or put at the disposal of an undertaking. On 25 January 2022, […]

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8. Februar 2022 | State Aid Uncovered von Phedon Nicolaides

The Mysterious “Substantial” Competitive Effect

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State aid has a “substantial” effect on competitors when it has a direct and negative impact on their market positions that goes beyond the typical influence of aid on competitive relationships. Introduction State aid always harms competition and competitors. A public measure that has no effect on competition is not State aid. Therefore, it is not enough for a company […]

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1. Februar 2022 | State Aid Uncovered von Phedon Nicolaides

I. The Commission Need not Always Open the Formal Investigation Procedure before Correcting a Faulty Decision II. Fines for Failure to Recover Incompatible Aid

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The formal investigation procedure need not be re-opened when the fault lies in the legal assessment of the measure in question. Incompatible State aid has to be recovered quickly and effectively, even from insolvent undertakings. Introduction This article examines two recent judgments concerning Greece. The first judgment explains when the Commission does not have to re-open the formal investigation procedure […]

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25. Januar 2022 | State Aid Uncovered von Phedon Nicolaides

Duplication of Infrastructure Does not Promote Regional Development

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A private investor is not interested in regional development. A private investor recoups its investment in infrastructure from revenue from the operation of that infrastructure. Duplication of infrastructure does not contribute to regional development. Introduction In 2015 the European Commission caused a buzz in the State aid community when it decided that investment aid granted to a small Polish airport […]

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18. Januar 2022 | State Aid Uncovered von Phedon Nicolaides

A Non-Selective Financial Tax with a Narrow Scope

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The scope of a tax must be objectively defined in order for those excluded from the tax not to benefit from a selective advantage. Introduction Taxes are burdens, so they fall outside the scope of Article 107(1) TFEU which prohibits selective benefits funded with state resources. Normally, Article 107(1) applies to benefits from tax exemptions or tax derogations which result […]

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11. Januar 2022 | State Aid Uncovered von Phedon Nicolaides

Private Creditor and the Ability of the Debtor to Repay

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There are no rules as to the promptness with which a private creditor must act in order to enforce its claims. However, a hypothetical private creditor need not demand that a debtor be declared insolvent as soon as it fails, without taking any account of its longer-term potential. Introduction When the state accepts to restructure debt owed to it or […]

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4. Januar 2022 | State Aid Uncovered von Phedon Nicolaides

Public Funding of an Energy Infrastructure Project

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State aid up to 100% of the funding gap of a project can be compatible with the internal market. Introduction The European Commission approved investment aid for a Liquefied Natural Gas [LNG] terminal in Alexandroupolis in northern Greece [case SA.55526]. The project involves the following: A Floating Storage Regasification Unit [FSRU] for the storage and regasification of LNG. The construction […]

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28. Dezember 2021 | State Aid Uncovered von Phedon Nicolaides

Illegal Aid Cannot be Regularised a Posteriori

A Commission decision finding non-notified aid to be compatible with the internal market cannot remedy the illegality that existed before the Commission decision. Introduction In November 2021, the General Court rejected an appeal by the recipient of illegal aid who had asked the Commission to declare the aid compatible with the internal market even though the Member State concerned had […]

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3. Januar 2022 | State Aid Uncovered von Phedon Nicolaides

How to Determine Selectivity

State Aid Blogs - Social Media posts

A measure is selective when it excludes undertakings that are equally capable of contributing to the achievement of its objectives. Introduction Since no two undertakings are exactly the same, how can it be determined whether they are in a comparable situation? Differences in their features such as size or the type of technology they use do not necessarily mean that […]

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14. Dezember 2021 | State Aid Uncovered von Phedon Nicolaides

First Case of a “Private Debtor” Test?

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A public authority acting as a “private debtor” tries to minimise the amount that it has to pay. Introduction In assessing whether commercial transactions between public authorities and undertakings are free of State aid, the European Commission and EU courts apply the market economy investor principle [MEIP]. In essence, this principle tests whether a public investor behaves like a private […]

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