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

14. November 2019 | State Aid Uncovered von Phedon Nicolaides

Risk Finance

State Aid Blogs - StateAidHub blogpost47 Finance lexxion GBER SMEs

Risk finance measures for the support for large enterprises or SMEs which operate for longer than seven years fall outside the GBER and must be notified individually to the Commission. Introduction Since the State aid modernisation and the new rules that were introduced in 2014, only a handful of risk finance measures [7-8?] have been notified to the European Commission […]

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5. November 2019 | State Aid Uncovered von Phedon Nicolaides

Economic Continuity in Recovery of Incompatible State aid

Lab test tubes

The new owner of a company that received incompatible State aid may be liable to pay it back. Introduction Companies rarely escape from the obligation to repay incompatible State aid. Over the past decade or so, very few companies have successfully argued that they legitimately expected that the aid they received was compatible with the internal market. When a […]

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30. Oktober 2019 | State Aid Uncovered von Phedon Nicolaides

The Operator of an Economic Infrastructure is an Undertaking

State Aid Blogs - m 1

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

State Aid Blogs - StateAidHub blogpost44 greenelectricity

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

State Aid Blogs - StateAidHub blogpost41 LNGterminal

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

State Aid Blogs - m 2

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 […]

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24. September 2019 | State Aid Uncovered von Phedon Nicolaides

“Invest-NL”: A New Promotional Bank

State Aid Blogs - StateAidHub blogpost39 promotionalbank

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

State Aid Blogs - StateAidHub blogpost38 saleofbank

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

State Aid Blogs -

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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22. Januar 2019 | State Aid Uncovered von Phedon Nicolaides

The Private Investor Principle in Air Transport – Part II

State Aid Blogs - StateAidHub Blogpost3 2019 lexxion Commission Airport Investment StateAid

Public funds managed by private airport operators can be classified as state resources. Prices charged by airport operators can be used as a benchmark for market prices only if their activities and size are comparable and their costs are not subsidised by State aid. Before a private investor enters into any commercial arrangement, it takes into account all relevant information, […]

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16. Januar 2019 | State Aid Uncovered von Phedon Nicolaides

The Private Investor Principle in Air Transport – Part I

State Aid Blogs - StateAidHub blogpost2 2019 lexxion stateaid airports

Public funds managed by private airport operators can be classified as state resources. Prices charged by airport operators can be used as a benchmark for market prices only if their activities and size are comparable and their costs are not subsidised by State aid. Before a private investor enters into any commercial arrangement, it takes into account all relevant information, […]

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8. Januar 2019 | State Aid Uncovered von Phedon Nicolaides

Justification of a Tax Exemption

State Aid Blogs - StateAidHub blogpost23

Prevention of excessive taxation may justify tax exemption. Prevention of abuse may justify limits to the tax exemption. Introduction A tax exemption may not constitute state aid if it is justified by reasons which are linked to the nature or general scheme of the tax system. This is what the Court of Justice said on 19 December 2018, […]

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21. Dezember 2018 | State Aid Uncovered von Phedon Nicolaides

Infrastructure Projects, State Guarantees and Distortion of Competition

State Aid Blogs - SAH blogpost51 52 stateaid infrastructure guarantees

State guarantees must be limited in duration and amount and the conditions for their mobilization must be defined in advance. Public funding to an operator in a closed sector does not affect trade and, therefore, does not constitute State aid. Introduction Large infrastructure projects are complex, encounter many unforeseen problems and often fall behind schedule for years. Consider, for […]

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18. Dezember 2018 | State Aid Uncovered von Phedon Nicolaides

The Date and Scope of Public Service Compensation

State Aid Blogs - SAH blog50 beneficiaries stateaid public transportation

Aid is deemed to be granted on the date the beneficiary undertaking acquires the legal right to it, regardless of whether it is actually paid on that date. It is not enough for a public authority to define the service that it wants an operator to provide and the price that it should charge. It must also define where and […]

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12. Dezember 2018 | State Aid Uncovered von Phedon Nicolaides

The Challenge of Identifying the Reference Tax System: The Spanish Goodwill Case, Again

State Aid Blogs - SAH blog49 Lexxion tax

To determine whether an aid measure is selective, the treatment of the beneficiaries has to be compared to those undertakings which are in a comparable position. Introduction On 15 November 2018, the General Court ruled in case T-239/11, Sigma Alimentos Exterior v European Commission.1 Sigma Alimentos Exterior (SAE), a Spanish company, appealed against Commission decision 2011/282 which found that […]

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4. Dezember 2018 | State Aid Uncovered von Phedon Nicolaides

The Recovery of Incompatible Aid Cannot be Absolutely Impossible Unless it is first Attempted

State Aid Blogs - SAH blog48 Montessori Lexxion

Introduction In its ruling of 6 November 2018 in cases C‑622/16 P to C‑624/16 P, Scuola Elementare Maria Montessori v European Commission, the Court of Justice made it harder for Member States to escape from their recovery obligations.[1] Montessori appealed against the judgment of the General Court in case T‑220/13, Scuola Elementare Maria Montessori v European Commission. That judgment was reviewed here on […]

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27. November 2018 | State Aid Uncovered von Phedon Nicolaides

Legal Standing of Investors in Failed Banks

State Aid Blogs - m 3

Investors that lodge claims before national courts for damages from resolution of banks have legal standing to request annulment of Commission decisions authorising State aid to those banks. Introduction It is now ten years since the start of the financial crisis. In these ten years, the Commission has adopted about 500 decisions dealing with State aid to banks and other […]

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20. November 2018 | State Aid Uncovered von Phedon Nicolaides

State Aid Provisions in the Draft Agreement on the Withdrawal of the UK from the EU

State Aid Blogs - StateAid Blogpost Brexit EU Lexxion

The agreement on the withdrawal of the UK from the EU requires compliance with EU State aid rules. Introduction On 14 November 2018, EU and UK negotiators finalised the text of the Agreement on the withdrawal of the UK from the EU.[1] The Agreement has to be ratified by the UK and the other 27 Member States. Given immediate […]

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9. November 2018 | State Aid Uncovered von Phedon Nicolaides

Using the Correct Methodology to Calculate Public Service Compensation

State Aid Blogs - stellrweb djb1whucfBY unsplash

Compensation for the extra costs of a public service obligation may include a reasonable profit that reflects the risk borne by the provider of the public service. Introduction The calculation of the amount of compensation for the extra costs of public service obligations can be difficult and tricky. In the absence of such calculation, aid to providers of […]

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