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. Mai 2022 | Guest State Aid Blog von Lexxion Publisher

How to approach the risk of carbon lock-in effects in state aid analysis?

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A recent FSR Debate[1] held on 4 May examined the key question of how policymakers and regulators can avoid carbon lock-in jeopardising the attainment of the European Union’s ambitious energy and climate targets. Carbon lock-in refers to situations where emissions-intensive energy assets continue to be used even when low-carbon and socially more beneficial assets are available. This is a controversial […]

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24. Mai 2022 | State Aid Uncovered von Phedon Nicolaides

Another Case of Rescue Aid to an Airline

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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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17. Mai 2022 | von Phedon Nicolaides

Rescue Aid

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Member State must demonstrate that rescue or restructuring aid aims to prevent social hardship or address market failure. The Temporary Framework is coming to an end The European Commission announced on 12 May 2022 that the Temporary Framework will be abolished on 30 June 2022, with the exception of the two types of support that were inserted in the Temporary […]

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10. Mai 2022 | State Aid Uncovered von Phedon Nicolaides

Risk Finance

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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

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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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26. April 2022 | State Aid Uncovered von Phedon Nicolaides

Member States Must Recover of their Own Initiative Illegally Granted Aid

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Aid granted illegal must be recovered by the granting authority without any need for a prior Commission decision ordering recovery. The amount of recovered aid may be limited to that which is in excess of what is allowed by the GBER. Introduction It is a well-established principle in the case law that a “prudent market operator” is responsible to check […]

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19. April 2022 | State Aid Uncovered von Phedon Nicolaides

Injection of Capital in a Postal Operator

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The resources of a public undertaking necessarily count as “state resources”, regardless of the degree of autonomy of the public undertaking. However, not every decision of a public undertaking can necessarily be “imputed” to the state. A prudent investor may take into account authorised State aid. A prudent investor may tolerate short-term losses if it can realise sufficient profits in […]

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12. April 2022 | State Aid Uncovered von Phedon Nicolaides

A First Commission Decision on Natural Gas Storage

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Compensation that guarantees a normal or fair rate of return eliminates risk that is inherent in market transactions and therefore confers an advantage in the meaning of Article 107(1) TFEU. Introduction On 23 March 2022, the European Commission announced plans to mitigate the spike in energy prices caused by the war in Ukraine. Chief among those plans were proposals for […]

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5. April 2022 | State Aid Uncovered von Phedon Nicolaides

Intra-State Transfers and the Discretion of Public Authorities

State Aid Blogs - State Aid Uncovered SM posts

Resources transferred from one public authority to another for the purpose of being used to subsidise undertakings do not fall within the scope of Article 107(1) TFEU if the recipient authority has discretion in their disbursement. Introduction A public authority that carries out economic activities becomes an undertaking that is subject to the prohibition of Article 107(1) TFEU. When the […]

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25. März 2022 | State Aid Uncovered von Phedon Nicolaides

A New Temporary Crisis Framework

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Introduction A new Temporary Framework which is called “Temporary Crisis Framework” [TCF] to distinguish it from the currently applicable Temporary Framework on covid-19 related State aid was adopted on 23 March 2022, almost two years to the date of the publication of the rules on covid-19 related State aid.[1] The purpose of the TCF is to enable Member States to […]

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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

State Aid Blogs - to use

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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