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

30. August 2022 | State Aid Uncovered von Phedon Nicolaides

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

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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)

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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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16. August 2022 | State Aid Uncovered von Phedon Nicolaides

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

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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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9. August 2022 | State Aid Uncovered von Phedon Nicolaides

Legal Standing of Competitors

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A Commission decision authorising or prohibiting a state aid measure that can be implemented without any intermediate rules is a “regulatory act” that can be challenged by “directly concerned” undertakings. Introduction Any natural or legal person who is the addressee of an act of an EU institution can challenge that act before EU courts. This is a right that is […]

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2. August 2022 | State Aid Uncovered von Phedon Nicolaides

Economic Activities of a Research Organisation (Part II)

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Introduction Member States use extensively the GBER to support R&D schemes. If we exclude the measures that were implemented in the context of covid-19 and now those which are financed by the recovery and resilience fund, not more than a dozen measures have been notified to the Commission for prior approval since 2014. Therefore, it was rather unusual that in […]

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26. Juli 2022 | State Aid Uncovered von Phedon Nicolaides

Economic Activities of a Research Organisation (Part I)

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The revenue from the economic activities of a research organisation must cover the full cost of those activities. Introduction Member States use extensively the GBER to support R&D schemes. If we exclude the measures that were implemented in the context of covid-19 and now those which are financed by the recovery and resilience fund, not more than a dozen measures […]

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19. Juli 2022 | State Aid Uncovered von Phedon Nicolaides

The State Behaving Like a Private Land Owner

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A private land owner changes rent at market rates. But it may accept lower rent if the user of the land incurs costs to improve it. Comparative analysis to determine the market value of land must take into account not only the particularities of the various land plots, but also the particularities of the various rental contracts. Introduction When the […]

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12. Juli 2022 | State Aid Uncovered von Phedon Nicolaides

State Guarantees without State Aid

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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?

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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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30. Juni 2022 | Guest State Aid Blog von Hans Arno Petzold

Further Views on Editorial by Andreas Bartosch (EStAL 1/2022, 1)

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Reading the Editorial by Andreas Bartosch (EStAL 1/2022, 1), I feel tempted – not to worship Satan or the GBER, but to add some more colours to the picture drawn up by the esteemed colleague. It is true that the Block Exemption Regulations were intended to save the Commission Services from „lästigem Alltagsgerümpel“ (“boring routine rubbish”, as Andreas Bartosch dubbed […]

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30. November 2021 | State Aid Uncovered von Phedon Nicolaides

When Does an Amendment of an Existing Aid Make it a New Aid?

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Existing aid becomes new aid if any amendment affects the assessment of its compatibility with the internal market. Introduction Member States often amend and adjust State aid measures after they are approved by the Commission. Such changes must be carried carefully because they can turn an existing aid into new aid and all new aid has to be notified to […]

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30. November 2021 | State Aid Uncovered von Phedon Nicolaides

Public Funding of an Undertaking in a Closed Sector

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Public funding of undertakings in sectors closed to competition does not constitute State aid. A sector is closed to competition when competition on and for the market is precluded by law. Introduction Determining when State aid does not affected cross-border trade is both difficult and tricky. But there is one exception; when the sector is closed to competition. A sector […]

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23. November 2021 | State Aid Uncovered von Phedon Nicolaides

6th Revision of the Temporary Framework for Covid-19 State Aid

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Introduction On Thursday, 18 November 2021, the European Commission adopted a sixth amendment to the Temporary Framework [TF] for State aid measures to combat covid-19. The document laying down the new amendments can be accessed here: https://ec.europa.eu/competition-policy/document/download/a822acec-f0c6-4c8c-ab49-fc2dd34188ec_en The TF was scheduled to expire on 31 December 2021. The new amendment extends its validity to 30 June 2022. It also changes […]

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16. November 2021 | State Aid Uncovered von Phedon Nicolaides

Selectivity and Tax Measures

The reference system for determining the selectivity of a tax measure must have its own logic and be autonomous and its identification depends on the content, structure and specific effects of the applicable rules. A measure that does not exclude any particular undertaking can be selective if it treats differently undertakings which are in similar situations. Introduction On 6 October […]

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9. November 2021 | State Aid Uncovered von Phedon Nicolaides

Compensatory Payments and State Resources

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Funds used in compensation mechanisms mandated by the state become state resources Introduction The Court of Justice has stressed repeatedly that any resource over which the state can exercise control becomes a state resource, regardless of whether it is managed by a public authority or a private entity. Member States, however, keep inventing novel and complicated arrangements in which mandated […]

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2. November 2021 | State Aid Uncovered von Phedon Nicolaides

Market Economy Operator

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Comparing prices charged by different airports is not a suitable method for detecting the existence of selective advantages. Introduction Airports enter into complex agreements with airlines. When airports are in public ownership or operate under a mandate by the state, their agreements with airlines may contain State aid. It is, however, very difficult to detect State aid in these agreements […]

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26. Oktober 2021 | State Aid Uncovered von Phedon Nicolaides

Legitimate Expectations and the “Right” to State Aid

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Legitimate expectations can only be created by EU institutions giving unambiguous and unconditional assurances. No undertaking enjoys a right to State aid. Member States may reduce the amount of State aid they grant. Introduction As the process of transition to green economy accelerates, Member States have been reducing the subsidies they promised to grant to the early investors in the […]

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19. Oktober 2021 | State Aid Uncovered von Phedon Nicolaides

Is Anyone who is Affected by State Aid an “Interested Party” that can Challenge a Commission Decision?

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A non-competitor cannot normally claim to be “interested party”. The Commission does not have to prove to the normal legal standard the existence of state aid when it opens the formal investigation procedure. Introduction This week’s article reviews two recent judgments: one on the status of “interest party” and another on the obligations of the Commission when it opens the […]

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12. Oktober 2021 | State Aid Uncovered von Phedon Nicolaides

Security of Supply May Justify a Deviation from Public Procurement Rules

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Security of supply justifies a deviation from the normal procurement procedures as long as the same security cannot be achieved through a competitive selection of suppliers. Introduction Point 19 of the 2012 SGEI Framework requires that the assignment of a public mission to an undertaking must comply with the applicable public procurement rules. It does not impose an obligation for […]

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5. Oktober 2021 | State Aid Uncovered von Phedon Nicolaides

What the Commission Must Find Out in the Preliminary Examination of State Aid: The Lessons from Tempus Energy on what is Sufficient Information

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The Commission must open the formal investigation procedure when it has serious doubts based on the information available to it. Introduction Once I asked an administrator of an institute where I used to work why I was not informed about certain benefits that were available to staff. “Because you did not ask”, he answered. How could I ask about something […]

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