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

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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28. September 2021 | State Aid Uncovered von Phedon Nicolaides

A Faulty Sale Procedure Can Lead to Presumption of State Aid and Annulment of a State Aid Decision

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A sale of public assets cannot be presumed to be free of State aid when bidders are not treated equally. Introduction When the state sells a company it owns, there is a presumption that no State aid benefits either the buyer or the company that is sold if the sale is open transparent, non-discriminatory, unconditional and the chosen buyer is […]

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21. September 2021 | State Aid Uncovered von Phedon Nicolaides

Market Economy Operator Test: Timisoara Airport & Wizz Air

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Public funding of activities that fall within the remit of the state does not constitute state aid. Although the presence of a credible ex ante business plan based on realistic assumptions is a strong indicator that the MEOT is satisfied, its absence does not necessarily prove that the MEOT is failed. Introduction Following a complaint by Carpatair, the European Commission […]

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14. September 2021 | State Aid Uncovered von Phedon Nicolaides

Pricing of Guarantees

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A market guarantee premium must cover all costs assumed by the guarantor including the cost of possible default, cost of capital and the cost of administering the guarantee. Introduction Financial instruments are much in vogue. The Pan-European Guarantee Fund and to a smaller extent the Recovery and Resilience Fund are implemented through financial instruments that seek to leverage private participation. […]

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7. September 2021 | State Aid Uncovered von Phedon Nicolaides

Assignment of Public Service Obligations

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The compensation for public service obligations may include reasonable profit and incentives for cost reduction. Introduction Member States have discretion to define services they consider to be in the general economic interest [SGEI]. However, they need to justify that definition. The Court of Justice has ruled on numerous occasions that an SGEI has “special characteristics” that set it apart from […]

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31. August 2021 | State Aid Uncovered von Phedon Nicolaides

Public Funding of an Undertaking in a Closed Sector

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Public funding of undertaking in a closed sector [legal monopoly] does not distort competition and therefore does not constitute State aid. A legal monopoly has to conform with internal market rules. Introduction In July 2017, the Commission received a complaint by “C” [the complainant] alleging that Germany had granted State aid to two companies, RVV and Nordwasser, which supplied fresh […]

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24. August 2021 | State Aid Uncovered von Phedon Nicolaides

It is Difficult to Challenge a Commission Decision Opening the Formal Investigation Procedure

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The assessment of the Commission in an “opening decision” is only provisional. The Commission is not required to prioritise its investigations or to extend them to anyone who may be in a similar situation. The right of non-discrimination is not violated when the Commission chooses to investigate some instead of all possible cases of State aid. An individual measure that […]

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19. August 2021 | Guest State Aid Blog von Lexxion Publisher

The European Commission’s Opening Decision in the German Lignite Phase-Out Case – Part II.

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The article is based on a legal opinion, that was given to LEAG. Doubts regarding the existence of an advantage – continued Compensation amounts based on a MEO settlement agreement An essential component of the compensation covering the full scope of any damages caused to the operators affected by the early closure is also the avoidance of legal and factual […]

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17. August 2021 | State Aid Uncovered von Phedon Nicolaides

The Problem of Multiple Awards of Aid to the Undertaking and to the Same Group

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Multiple awards of aid to the same undertaking are allowed as long as they cover different costs. Multiple awards of aid to the same group are allowed as long as aid does not leak from one undertaking in the group to another. Introduction In the first half of 2021, the General Court ruled in ten cases of appeal lodged by […]

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12. August 2021 | Guest State Aid Blog von Lexxion Publisher

The European Commission’s Opening Decision in the German Lignite Phase-Out Case – Part I.

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The article is based on a legal opinion, that was given to LEAG. Introduction The European Green Deal envisages a clean and decarbonised energy sector with net-zero greenhouse gas emissions by 2050.[1] These ambitious objectives entrust the Member States with enormous tasks in connection with the transformation process, which must always be designed in a proportionate manner. For this purpose, […]

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21. Dezember 2020 | State Aid Uncovered von Phedon Nicolaides

Attribution to the State does not necessarily Imply Control by the State

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Prices fixed by the state do not necessarily confer control to the state over the private resources which are used to pay those prices. Introduction Judging from how many times EU courts have been asked to interpret the concept of state resources, it seems that one of the most difficult aspects of Article 107(1) TFEU is to determine whether funding […]

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15. Dezember 2020 | State Aid Uncovered von Phedon Nicolaides

The Law, Economics and Art of Compensation for Public Service Obligations

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State aid in the form of compensation for public service obligations must exclude any intangible benefits from the obligation, but may include reasonable profit. The Commission guidelines for State aid in agriculture and forestry, the block exemption regulations covering agriculture, forestry, fishery and aquaculture, and the Regulation on de minimis aid for fishery and aquaculture have been prolonged to 31 […]

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8. Dezember 2020 | State Aid Uncovered von Phedon Nicolaides

A Rare Case of Altmark-compliant SGEI (Part II)

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For a service to be in the general economic interest, it must be shown to fill a gap in the market or to offer what the market fails to provide adequately. [In case you have missed part I, you can access it here.] Introduction Services of general economic interest [SGEI] are important for the functioning of European societies. However, the […]

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1. Dezember 2020 | State Aid Uncovered von Phedon Nicolaides

A Rare Case of Altmark-compliant SGEI (Part I)

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For a service to be in the general economic interest, it must be shown to fill a gap in the market or to offer what the market fails to provide adequately. Introduction Services of general economic interest [SGEI] are important for the functioning of European societies. However, the granting of compensation to an undertaking for the provision of SGEI must […]

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24. November 2020 | State Aid Uncovered von Phedon Nicolaides

De Minimis Aid

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If different awards of de minimis aid bring the total amount over the ceiling of EUR 200,000, Member States may withdraw aid already granted or reduce the amount of aid that is scheduled to be granted or simply refuse to grant aid so as to ensure that the total remains below the ceiling for any three-fiscal year period. Introduction A […]

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10. November 2020 | State Aid Uncovered von Phedon Nicolaides

What is the Value of Informal Commission Communications?

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An official’s statement can be imputed to his authority if it can be reasonably assumed that the official speaks on behalf of the authority. Introduction It is often asked by national officials how much credence they should give to assurances by Commission officials in the absence of a formal Commission decision and what is the legal value of such assurances. […]

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3. November 2020 | State Aid Uncovered von Phedon Nicolaides

The Concept of SME, Indirect Control by Public Bodies and New Problems for Public Universities and Research Organisations

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I am grateful to Peter Staviczky for comments on an earlier draft. A company that is owned by more than 25% by public bodies is not considered to be an SME, regardless of whether those public bodies actually exercise direct or indirect control. A public university can be a public body. Temporary Framework Update: Number of approved and published covid-19 […]

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3. November 2020 | State Aid Uncovered von Phedon Nicolaides

Evaluation of EU State Aid Rules: Need for Greater Transparency

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On Friday, 30 November 2020, the European Commission published a Staff Working Document [SWD(2020) 257 final] presenting and assessing the results of the evaluation of the main State aid rules of the EU. The SWD explains the aims of the State Aid Modernisation [SAM] that was launched in 2012 and summarises the findings of the Fitness Check of the GBER, […]

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27. Oktober 2020 | State Aid Uncovered von Phedon Nicolaides

The Common European Interest and the Environmental Impact of State Aid: The Case of Nuclear Power

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I am grateful to Peter Staviczky for comments on an earlier version. The possible negative impact of State aid on the environmental is taken into account when the aid measure violates directly the relevant EU law. The Commission protects the interests of other Member States by ensuring that the negative effects of State aid are kept to the minimum possible. […]

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20. Oktober 2020 | State Aid Uncovered von Phedon Nicolaides

Employees’ Social Security Contributions and Compensation for Damage

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Fiscal benefits to employees do not constitute State aid as long as they do not confer a direct or indirect advantage to their employers. Update on Temporary Framework: Number of approved and published Covid-19 measures, as of 16 October 2020: 302* Legal basis: Article 107(2)(b): 32; Article 107(3)(b): 255; Article 107(3)(c): 23 Average number of measures per Member State: 11 […]

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