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

16. Juni 2020 | State Aid Uncovered von Phedon Nicolaides

Direct v Indirect Advantages: The Case of Sardinian Airports

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Public funding that flows through intermediaries to third parties also counts as a state resource if the intermediaries carry out instructions by the funding authority. Temporary Framework: Number of approved covid-19 measures, as of 12 June 2020: 154* Legal basis: Article 107(2)(b): 14; Article 107(3)(b): 130; Article 107(3)(c): 14 Three recapitalisation measures have been approved [Finland, Lithuania & Poland]. The […]

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11. Juni 2020 | Guest State Aid Blog von Erika Szyszczak

When State Aid Gets Political

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We are happy to receive a guest comment on the EU – UK post-Brexit trade negotiations from Professor Emerita, Erika Szyszczak, who is a Fellow of UKTPO at the University of Sussex. This is a longer version of an earlier Blog published on the UKTPO website. Control over State aid is a stumbling block for the future of an EU […]

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9. Juni 2020 | State Aid Uncovered von Phedon Nicolaides

Private Investor and Preferential Regulatory Treatment

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The existence of an advantage has to be proven, not presumed just because its absence cannot be confirmed. Preferential treatment may distort competition but it is not necessarily State aid if there is no transfer of state resources. Temporary Framework: Number of approved covid-19 measures, as of 5 June 2020: 148* Legal basis: Article 107(2)(b): 13; Article 107(3)(b): 125; Article […]

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2. Juni 2020 | State Aid Uncovered von Phedon Nicolaides

i) Investor-State Arbitration ii) Recovery of Incompatible State Aid iii) State Aid Scoreboard 2019

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Member States abolish bilateral investment treaties between themselves. When the Commission orders recovery of incompatible State aid, interest has to be added to the recoverable amount for the whole period of illegality regardless of any national limitation rules. In 2018, Member States granted EUR 121 billion to industry and services, EUR 6.3 billion to agriculture and EUR 50 billion to […]

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26. Mai 2020 | State Aid Uncovered von Phedon Nicolaides

State Aid for i) Water Development ii) Travel

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Aid to individuals in the context of social policy is compatible with the internal market as long as it is granted without discrimination on the origin of products or services. Temporary Framework: Number of approved covid-19 measures, as of 22 May 2020: 129* Legal basis: Article 107(2)(b): 9; Article 107(3)(b): 111; Article 107(3)(c): 12 * Excludes amendments to previously notified […]

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19. Mai 2020 | State Aid Uncovered von Phedon Nicolaides

No New Aid to Undertakings that Have not Yet Repaid Incompatible Aid

State Aid Blogs - StateAidHub blogpost20 Incompatible Aid

There is no rule in EU law obliging Member States to grant State aid. The European Commission may refuse to authorise aid until previous aid that was found to be incompatible with the internal market is paid back. Temporary Framework: Number of approved covid-19 measures, as of 16 May 2020: 125* Legal basis: Article 107(2)(b): 10; Article 107(3)(b): 105; Article […]

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14. Mai 2020 | Guest State Aid Blog von Wout De Cock

Belgium and COVID-19: The European Commission Approves Several Belgian State Aid Measures

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We are happy to share with you an update on the Covid-19 measures that have been approved in Belgium. Our guest auhor Wout De Cock is a PhD candidate at the Vrije Universiteit Brussel and part-time teaching assistant at the Katholieke Universiteit Leuven.* Introduction In issue 1/2020 of the European State Aid Law Quarterly, we concluded that the European Commission […]

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12. Mai 2020 | State Aid Uncovered von Phedon Nicolaides

Advantage Must be Proven, Not Assumed

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The European Commission has to consider whether the private investor principle is applicable in cases of state investments. It is for Member States to prove that their investments conform with the private investor principle. Temporary Framework As of 9 May 2020, the European Commission had approved 113 State aid measures to combat covid-19. Their legal basis was: Article 107(2)(b): 10; […]

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5. Mai 2020 | State Aid Uncovered von Phedon Nicolaides

Non-recovery of Incompatible State aid Is Costly

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Legal and practical difficulties in the recovery of incompatible State aid do not constitute justifiable “absolute impossibility”. Temporary Framework On 1 May, the total number of State aid measures to combat covid-19 approved by the European Commission reached 102. Their legal basis was: Article 107(2)(b): 9; Article 107(3)(b): 86; Article 107(3)(c): 7 Introduction The 2020 Temporary Framework for State […]

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27. April 2020 | State Aid Uncovered von Phedon Nicolaides

Identification of Undertakings in Difficulty

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A company is in difficulty if, in practice, its accumulated net losses exceed 50% of its subscribed capital, regardless of whether the subscribed capital is formally written down. The classification of a company as being in difficulty is independent of the sector in which it operates and of whether a private investor would be willing to invest in it. Temporary […]

4 Kommentare

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30. Oktober 2019 | State Aid Uncovered von Phedon Nicolaides

The Operator of an Economic Infrastructure is an Undertaking

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The assignment of public service tasks to an infrastructure operator is not sufficient to prevent the application of State aid rules. Introduction The characterisation of an entity as an undertaking is activity based, not status based. If it carries out activities for which there is a market, it becomes an undertaking, regardless of providing services which are in the general […]

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22. Oktober 2019 | State Aid Uncovered von Phedon Nicolaides

Production of Green Electricity

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Member States may reduce the amount of State aid they grant and companies may not claim they have a right to State aid. Introduction Close to 60% of all aid granted to industry and services in the EU goes to support environmental protection, energy efficiency and the generation of electricity from renewable sources of energy. However, as technology improves, the […]

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16. Oktober 2019 | State Aid Uncovered von Phedon Nicolaides

Attempting to Minimise Past State aid Is of No Interest to a Private Investor

State Aid Blogs - StateAidHub blogpost43 privateinvestor

A public authority acting as a private investor ignores past State aid. Introduction It is now a settled principle that when a public authority intends or pretends to act as a private investor it must not take into account any past aid it has granted to the company in which it wants to invest. On 19 September 2019, the General Court […]

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8. Oktober 2019 | State Aid Uncovered von Phedon Nicolaides

Public Service Obligations, Duration of Entrustment and Reasonable Profit

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The duration of entrustment should not exceed the economic life of the investment and the rate of return should reflect the commercial risk of that investment. Introduction Is a 55-year entrustment through a direct award compatible with EU rules? And is a profit rate that exceeds the risk-free rate of return reasonable? These are some of the questions that the […]

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1. Oktober 2019 | State Aid Uncovered von Phedon Nicolaides

Enforcement of State Aid Rules by National Courts

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Private enforcement has increased, but damages for illegal granting of State aid have been successfully claimed in just one case. Introduction According to the annual competition report that was published in July, Member States use the GBER to implement 96% of their new aid measures.[1] This impressive outcome should be seen in conjunction with the recent rulings of the Court […]

3 Kommentare

24. September 2019 | State Aid Uncovered von Phedon Nicolaides

“Invest-NL”: A New Promotional Bank

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A state-owned promotional or development bank can pursue public policy objectives and also invest on terms which are acceptable to private investors. Introduction During the past decade or so several Member States have established “promotional” or “development” banks for the purpose of investing where the market does not. Private investors may be reluctant to commit their money for a variety […]

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17. September 2019 | State Aid Uncovered von Phedon Nicolaides

Sale of a Bank without State aid

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The sale must be open, transparent, non-discriminatory, unconditional and the winning bid must be the offer with the highest price. Introduction The German HSH Nordbank used to be the largest provider of ship finance in the world. It had commercial presence in over 20 major financial centres. Before the outbreak of the financial crisis in 2008, HSH Nordbank had a […]

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10. September 2019 | State Aid Uncovered von Phedon Nicolaides

Individually Notified Regional Aid

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All individual awards of aid granted to the same project over a three-year period have to be counted together and remain below the maximum allowable aid intensity in relation to the sum of eligible costs. Introduction Hungary operates an aid scheme that offers tax credits to encourage regional investment. The scheme has been implemented on the basis of the GBER […]

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3. September 2019 | State Aid Uncovered von Phedon Nicolaides

Presumed v Actual Compatibility of State aid with the Internal Market

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State aid granted on the basis of the GBER may not be considered as authorised by the Commission. The task of Member States is to ensure that all of the requirements of the GBER are fulfilled. In particular, Member States must confirm the incentive effect of aid to large enterprises. Introduction[1] In March 2019, the Court of Justice delivered […]

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28. August 2019 | State Aid Uncovered von Phedon Nicolaides

A Curious Case of Port Concessions

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The obligations of a concessionaire may be made less onerous in order to enable it to remain in operation. Any adjustment of the obligations takes into account the possible legal defences of the concessionaire. Introduction The Market Economy Investor Principle [MEIP] is a powerful concept. Its many variations attest to its versatility [e.g. market economy investor, operator, vendor, creditor]. It […]

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