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

13. März 2019 | State Aid Uncovered von Phedon Nicolaides

How Can Incompatible State Aid Be Passed-on from one Company to another to Avoid Recovery?

State Aid Blogs - StateaidHub blogpost10 2019 commission judgement nvestment state aid lexxion

Introduction State aid that is incompatible with the internal market has to be paid back, unless the repayment would be contrary to a general principle of EU law. Last November the Court of Justice ruled in case C‑622/16 P, Scuola Elementare Maria Montessori v European Commission that “(79) the principle that ‘no one is obliged to do the impossible’ is among the […]

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5. März 2019 | State Aid Uncovered von Phedon Nicolaides

How Much May a Non-Economic Entity Charge without Becoming an Undertaking?

State Aid Blogs - StateaidHub blogpost9 2019 lexxion education stateaid financing commission 2

The price should not cover more than 50% of the costs. Introduction An entity that does not make profit can still be an undertaking. However, an entity that charges a fee for its services is not necessarily an undertaking. The EU Court of Justice has never defined how low such a fee must be in order for that entity to […]

2 Kommentare

27. Februar 2019 | State Aid Uncovered von Phedon Nicolaides

EU Rules do not Impose a Time Limit on the Power of National Courts to Deal with Non-notified Aid

State Aid Blogs - StateAidHub blogpost8 Maritim Ferry Port StateAid Lexxion

State aid may affect trade even when the market concerned is not liberalised. This can happen when the aid recipient also has operations outside that market, which it can cross-subsidise. Claims for damages caused by illegal aid must be accorded the same treatment under national law as any other claim resulting from faulty decisions of the state. Introduction A […]

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19. Februar 2019 | State Aid Uncovered von Phedon Nicolaides

Support for Non-Performing Loans in Cyprus

State Aid Blogs - StateAidHub blogpost47 Finance lexxion GBER SMEs

Public assistance to households to pay for their mortgages is not State aid. Public assistance to enterprises to pay for their loans may be qualified as de minimis aid. Public assistance to households and de minimis aid to enterprises to pay for their loans are indirect aid to banks, which, however, falls outside the directive on bank recovery and resolution […]

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14. Februar 2019 | State Aid Uncovered von Phedon Nicolaides

What Does a Private Investor Take into Account before Investing?

State Aid Blogs - StateAidHub blogpost6 2019 Lexxion investment Stateaid commission EU telecom

A private investor may invest in a troubled company that is restructuring is order to increase its future profitability. Introduction The answer to the question posed above is short and simple: everything relevant. A private investor does not ignore anything that can affect the profitability of the prospective investment.This implies that the other side of the coin is […]

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12. Februar 2019 | State Aid Uncovered von Phedon Nicolaides

Pari Passu Is not Static

State Aid Blogs - StateAidHub blogpost4 2019 lexxion pari passu chemistry Investment

When comparing the behaviour of public and private creditors, it is necessary to ensure that their situations and interests do not diverge over time. Introduction When an undertaking owes money to a public authority the latter must use all available legal means to recover the money, including the liquidation of the undertaking and the sale of its assets. […]

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29. Januar 2019 | State Aid Uncovered von Phedon Nicolaides

Services of General Economic Interest: Proper Definition and Avoidance of Overcompensation

State Aid Blogs - StateAidHub Blogpost4 2019 Lexxion Stateaid SGEI Social Housing

Member States need to demonstrate that public service obligations imposed on undertakings are necessary and proportional to the need for public service. A change in the funding of public services does not constitute new aid if it does not alter its objectives, the beneficiaries or the amount of aid by more than 20%. Introduction It is a well-established principle […]

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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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30. November 2017 | State Aid Uncovered von Phedon Nicolaides

The Legal Basis of the (In)compatibility of Aid Must be Clear

State Aid Blogs - m 3 2

The European Commission may withdraw a decision, but before it adopts a new decision it must give an opportunity to interested parties to submit their comments, especially, if it changes the legal basis of the assessment of the compatibility of the aid. Introduction The most frequent reasons for which the Commission finds aid to be incompatible with the internal […]

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21. November 2017 | State Aid Uncovered von Phedon Nicolaides

i) Transfer of State Resources, ii) Non-recovery of Incompatible Aid, iii) Primacy of Agricultural Policy over Competition Policy

State Aid Blogs - 21.11.State resources State control

Private resources that come under the control of a public authority become state resources. The only defence for not recovering incompatible aid is absolute impossibility. Agricultural policy objectives take precedence over those of competition policy. Introduction This article reviews a case involving transfer of state resources and a case concerning failure to recovery of incompatible State aid. It also draws […]

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14. November 2017 | State Aid Uncovered von Phedon Nicolaides

Existing v New Aid

State Aid Blogs - m 4 1

Any alteration of an existing aid measure can affect the substance of the measure itself. A deviation from the conditions of authorisation may turn existing aid into new aid. Alteration or deviation from the conditions of authorisation that affect the compatibility of an existing aid measure, can result in the granting of new aid. A Member State that alters an […]

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7. November 2017 | State Aid Uncovered von Phedon Nicolaides

Indirect v Secondary Effects of State Aid

State Aid Blogs - 07.11.sardinia airport State aid

The prohibition of State aid in Article 107(1) of the Treaty applies both to the direct and indirect beneficiaries of aid. The direct and indirect beneficiaries are those who are intentionally targeted by the aid. Secondary effects are benefits which are inherent in an aid measure and which are not targeted at specific undertakings. Introduction Public funding for the […]

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1. November 2017 | State Aid Uncovered von Phedon Nicolaides

Activities Linked to State Prerogatives

State Aid Blogs - 01.11.17 State aid

Economic activities which cannot be separated from the exercise of public powers cease to be economic in nature. Introduction The dividing line between economic and non-economic activities is in a permanent state of flux. Although it is now clear that some activities fall within the powers and prerogatives of the state, while many others are carried out by the […]

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24. Oktober 2017 | State Aid Uncovered von Phedon Nicolaides

Private Creditor Test

State Aid Blogs - SAH Blog26 GBERd

The Commission must apply the private creditor test even if a Member State does not request it or believes that it is not relevant. Introduction Private investors always have two options: to invest or not to invest. They choose the option that generates the largest amount of profit or revenue. Similarly, private creditors also have two options: call in […]

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17. Oktober 2017 | State Aid Uncovered von Phedon Nicolaides

State Resources and Imputability

State Aid Blogs - 17.10. imputability stateaid

When the state acts in its capacity as legislator it is not presumed to direct the resources of undertakings it owns and over which it can exercise dominant influence as a shareholder. Introduction On 13 September 2017, the Court of Justice replied to a request from a national court to advise it on the concept of state resources [case C‑329/15, […]

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10. Oktober 2017 | State Aid Uncovered von Phedon Nicolaides

Pitfalls in the Use of De Minimis Aid

State Aid Blogs - 05.12.Imputability of Aid State aidz

Calculating de minimis aid according to the average amount of aid received by undertakings is wrong. Introduction It appears that all Member States grant de minimis aid, even though some tend to grant it more easily than others. De minimis aid can be used to subsidise any costs, including those which are not eligible under other State aid rules. The […]

3 Kommentare

4. Oktober 2017 | State Aid Uncovered von Phedon Nicolaides

The Necessity and Proportionality of Regional Aid

State Aid Blogs - m 5 1

The Commission must open the formal investigation procedure when it has serious doubts about the compatibility of State aid. The aid that is necessary to induce a company to locate its investment in an assisted region is the amount that covers the difference in costs between the assisted region and the best alternative location. This amount is also proportional. […]

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26. September 2017 | State Aid Uncovered von Phedon Nicolaides

Odysseus and the Sirens: A Rational Market Operator Can Agree to be Bound by the Ruling of an Arbitration Tribunal

State Aid Blogs - m 6 1

A rational market operator can agree to arbitration if there is no reasonable prospect of a better outcome. However, a rational operator would ensure that the terms according to which an arbitration decision can be taken would be defined in advance and would not be prejudicial to the operator. Introduction Is it rational for a market operator to agree […]

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