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 […]

3 Kommentare

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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6. November 2018 | State Aid Uncovered von Phedon Nicolaides

Unconditional and Unlimited Guarantees and their (In)Compatibility with the Internal Market

State Aid Blogs -

Operating aid is not normally compatible with the internal market. Therefore, State aid provided through state guarantees should not cover operating costs. State aid embedded in guarantees must be quantifiable so that its necessity and proportionality can be assessed. The assessment of State aid must be made within an EU context taking into account its impact on trade. Introduction […]

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30. Oktober 2018 | State Aid Uncovered von Phedon Nicolaides

Tax Inseparably Linked to State Aid

State Aid Blogs - Stateaid Blog43 Tax movie rent

Taxes which are inseparably linked with an aid measure are assessed together with the aid itself. An increase of the budget of an aid scheme by more than 20% constitutes a change of existing aid that must be notified to the Commission for prior authorisation. Introduction Taxpayers may not refuse to pay taxes on the grounds that the tax […]

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23. Oktober 2018 | State Aid Uncovered von Phedon Nicolaides

Public Service Obligations Must be Properly Defined and Selectivity Must be Proven [1]

State Aid Blogs - Stateaid blog42 Broadcasting

Neither the existence of market failure, nor national laws that designate a service to be in the general interest can replace an official act that assigns to one or more undertakings clearly defined public service obligations. Introduction The proper definition of public service obligations (PSOs) is an issue that arises with surprising regularity. It is surprising because numerous court […]

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16. Oktober 2018 | State Aid Uncovered von Phedon Nicolaides

Unlimited State Guarantees

State Aid Blogs - m 2 1

Unlimited state guarantees create a presumption that the recipient of the guarantee obtains an advantage in the form of cheaper credit. Any advantage in the form of lower risk in transactions with suppliers or clients has to be proven. Introduction State guarantees must be limited in time and amount and may cover only a specified event. Unlimited and general […]

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9. Oktober 2018 | State Aid Uncovered von Phedon Nicolaides

Ex ante Assessment of Future Profitability is Absolutely Necessary

State Aid Blogs - m 1 1

A private investor assesses the prospects of future profitability before it invests. The burden of proof lies with the Member State that claims it has acted as a private investor. Introduction The market economy investor principle is based on a simple premise: before you commit your money you need to check how much you are likely to get back. […]

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2. Oktober 2018 | State Aid Uncovered von Phedon Nicolaides

The Compatibility of State Aid with the Internal Market: Lessons from “Hinkley Point C” – Part III

The objective of common interest that should be supported by State aid does not have to be an objective agreed by all Member States. Environmental protection Austria argued that the Commission had ignored the potential negative effects of the aid on the environment such as the storing of nuclear waste. The reply of the Court was that “(516) in […]

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25. September 2018 | State Aid Uncovered von Phedon Nicolaides

The Compatibility of State Aid with the Internal Market: Lessons from “Hinkley Point C” – Part II

State Aid Blogs - SAH blogpost37 Hinkley Point C UK 2017

The objective of common interest that should be supported by state aid does not have to be an objective agreed by all Member States. Existence of market failure and need for aid Austria and Luxembourg claimed that the intervention by the UK was not necessary and that there was no evidence that the liberalised market for the generation and […]

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18. September 2018 | State Aid Uncovered von Phedon Nicolaides

The Compatibility of State Aid with the Internal Market: Lessons from “Hinkley Point C” – Part I

State Aid Blogs - SAH blogpost37 Hinkley Point C UK 2017

The objective of common interest that should be supported by state aid does not have to be an objective agreed by all Member States. Introduction On 12 July 2018, the General Court ruled in a complex case brought by Austria and Luxembourg against Commission decision 2015/658 which had authorised State aid for Hinkley Point C, a new nuclear power […]

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11. September 2018 | State Aid Uncovered von Phedon Nicolaides

Selectivity Can Exist at Different Levels: The Case of the Spanish Tax Lease System

transport ship

A tax measure may be selective in relation to both intermediate and final beneficiaries. An undertaking may enjoy a selective advantage even if it passes all tax benefits to other parties. Introduction A measure that is not selective at one level may be selective at another level and a measure that is selective at one level can also be […]

4 Kommentare

4. September 2018 | State Aid Uncovered von Phedon Nicolaides

Public Procurement and State Aid

State Aid Blogs - SAH blogpost35 Nuclearpower

State aid does not have to be awarded on the basis of a competitive procedure, unless the relevant rules require it. Secondary legislation may allow Member States to make direct awards without a prior competitive procedure. Public procurement rules do not apply to awards between contracting authorities. Introduction Public procurement and State aid rules have the same basic […]

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