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

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

When State Aid Gets Political

State Aid Blogs - brexit 3870554 1920

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

State Aid Blogpost 21 Picture

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

Road sign "Wrong Way"

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

corona virus poster

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

20. April 2020 | State Aid Uncovered von Phedon Nicolaides

How to Price a Guarantee

Football ball on a field

The pricing of a guarantee must take into account not only the financial situation of the borrower but also the value of any collateral. Temporary Framework As of 17 April 2020, the European Commission authorised 61 State aid measures from 23 Member States and the UK to combat covid-19. Introduction State guarantees on loans make up the largest category […]

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18. Juni 2019 | State Aid Uncovered von Phedon Nicolaides

Is it OK to Tax Company Size?*

State Aid Blogs -

Progressive tax rates that are consistent with the objective of the tax system are not necessarily selective. Introduction Member States are free to design their corporate tax systems as long as they do not grant State aid or infringe fundamental internal market freedoms. A question that arises in discussions on what Member States may or may not do when designing […]

2 Kommentare

11. Juni 2019 | State Aid Uncovered von Phedon Nicolaides

I) Unlimited State Guarantees II) Effect on Trade

State Aid Blogs - StateAidHub blogpost23

A competitor who wants to challenge a Commission decision authorising State aid without a formal investigation must, first, show that it is seriously harmed by the aid. Introduction This week’s article reviews two judgments: one on unlimited state guarantees granted by France [case T-135/17, Scor v European Commission][1] and another on aid that was found not to affect trade between Member […]

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4. Juni 2019 | State Aid Uncovered von Phedon Nicolaides

Not Every Compensation Is a Compensation in the Meaning of Altmark

State Aid Blogs - StateAidHub blogpost22 electricity Altmark SGEI

Regulation and licensing do not constitute obligations for the provision of an SGEI. Compensation for changes in public policy is not compensation that complies with the Altmark conditions. Introduction The calculation of the compensation for the net extra costs of public service obligations [PSO] is a difficult task. On 15 May 2019, in case C-706/17, Achema et al v Lithuania […]

1 Kommentar

28. Mai 2019 | State Aid Uncovered von Phedon Nicolaides

What Happens when Internal Market Rules and State Aid Rules Clash?

State Aid Blogs - StateAidHub blogpost21 Tax Refund

A tax refund may not be granted, if it constitutes non-notified State aid. Introduction It is a well-established principle that restrictions on internal market rights or freedoms may not be attached to a State aid measure. Indeed, current State aid rules [e.g. GBER, guidelines] explicitly exclude from their scope any aid measure which is inseparably linked to a […]

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21. Mai 2019 | State Aid Uncovered von Phedon Nicolaides

There Is No Threshold below which Economic Activities Can Be Considered to be Non-economic

State Aid Blogs - StateaidHub blogpost20 Lexxion Port Economic Activities

Non-economic activities have to be accounted separately from economic activities. The exercise of public tasks assigned by the state cannot protect an undertaking from State aid rules. State aid distorts competition even when it aims to remedy distortions. Introduction Ports, like other transport infrastructures, may operate under public obligations some of which may be of economic and some of non-economic […]

2 Kommentare

16. Mai 2019 | State Aid Uncovered von Phedon Nicolaides

Competitors’ Rights

State Aid Blogs - StateaidHub blogpost19 Lexxion Lufthansa Airport StateAid Ryanair Frankfurt Competition EU Commission

A competitor must show that it is substantially affected by State aid approved by the Commission in order to challenge the Commission’s decision. Merely being affected by the aid is not enough. To show that aid has a substantial impact, it is first necessary to define the relevant market. This is different from the “distortion of competition” in the meaning […]

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7. Mai 2019 | State Aid Uncovered von Phedon Nicolaides

Land Development: The Case of Jaguar Land Rover Slovakia

State Aid Blogs - StateAidHub blogpost18 Landrover Jaguar Nitra Stateaid Infrastrsucture Transport Lexxion

Public funding of infrastructure which is not constructed for the specific needs of a company is not State aid. Introduction An article carried by the Financial Times on 1 May 2019 revealed that Jaguar Land Rover [JLR] decided to make again the iconic Land Rover Defender. The production of this legendary off-roader ended about 10 years ago because it […]

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30. April 2019 | State Aid Uncovered von Phedon Nicolaides

The Commission Must Explain its Decision

State Aid Blogs - StateAid Blogpost17 2019 Lexxion UPS DeutschePost Eu Commission State Aid

A Commission decision that affects the legal position of an undertaking is actionable before EU courts. The opening of the formal investigation procedure must lead the Member State concerned to suspend the aid measure and may result in a recovery ruling by a national court. The Commission must be consistent in its reasoning. If it cannot use certain information at […]

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23. April 2019 | State Aid Uncovered von Phedon Nicolaides

State Control: The Case of EEG 2012

State Aid Blogs - 5 most read articles 2019

There is crucial difference between control by the state over resources and attribution to the state of the aid granting decision. Introduction According to the latest edition of the State aid Scoreboard, in 2017 Member States granted a total of EUR 105 billion of State aid to manufacturing and services. Of that amount, 58% or EUR 61 billion supported […]

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16. April 2019 | State Aid Uncovered von Phedon Nicolaides

Spanish Football Clubs Score against the Commission: a) Linked Advantages and Disadvantages Must be Assessed Together b) In Determining the Existence of an Advantage, the Commission Must Explain both what it Takes into Account and what it Ignores

State Aid Blogs - StateAidHub blogpost15 Soccer loans Lexxion Spain EU Commission

State measures which are linked and produce both positive and negative effects, must be considered together to determine whether they confer a net advantage to undertakings. Counter-guarantees must be taken into account to determine the existence of advantage even if they are provisional. Introduction Member States have in a number of cases tried to defend tax reductions or tax […]

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