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

29. November 2016 | State Aid Uncovered von Phedon Nicolaides

Media Plurality in Denmark

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State aid measures need not be open to all undertakings. Introduction On 11 October 2016, the General Court rendered its judgment in case T-167/14, TSøndagsavisen v Commission.[1] Søndagsavisen requested annulment of Commission decision SA.36366 on a measure that had been notified by Denmark. The purpose of the measure was to support production and innovation in the newspaper and magazine sector […]

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23. November 2016 | State Aid Uncovered von Phedon Nicolaides

No Affectation of Trade

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Public subsidies that do not affect cross-border trade either directly or indirectly do not constitute State aid in the meaning of Article 107(1). The direct trade effect is the impact on customers or users. The indirect trade effect is the impact on potential market entrants. Introduction In April 2015, the Commission surprised us with seven decisions that concluded that […]

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15. November 2016 | State Aid Uncovered von Phedon Nicolaides

Private Investor v Private Creditor

State Aid Blogs - 01.11.17 State aid

When the state, acting as a private investor, seeks to recover past public investments, it must aim to maximise the recoverable amount. However, public funds that were granted as State aid must be ignored when the recoverable amount of past investments is calculated. Introduction On 15 September 2016, the General Court rendered its judgment in case T‑386/14, FIH Holding v […]

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8. November 2016 | State Aid Uncovered von Phedon Nicolaides

1) Selectivity of Health Tests 2) Existing v New Aid in Preferential Electricity Tariffs

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A measure can be selective even if it applies to a whole sector. An existing aid measure becomes new when a court extends it temporarily. Introduction This article reviews two judgments: one on BSE tests in Belgium and another on preferential electricity tariffs in Greece. The issue at hand with respect to the BSE test was whether a measure […]

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1. November 2016 | State Aid Uncovered von Phedon Nicolaides

Turnover Taxes Can be Incompatible with the Internal Market

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Progressive taxes levied on turnover can provide State aid that is incompatible with the internal market. Flat turnover taxes are proportional and therefore likely to be free of State aid. Introduction Hungary wanted to levy two types of turnover taxes whose purpose was to protect health. The first tax was levied on tobacco products.[1] The Commission found, in decision 2016/1846, […]

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25. Oktober 2016 | State Aid Uncovered von Phedon Nicolaides

Belgium’s Alternative Tax Regime for the Diamond Sector

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Alternative tax regimes do not provide State aid as long as they raise the amount of tax paid and they are justified by the nature or general scheme of the normal system of taxation. Introduction During the past three years, the Commission has been pursuing multinational companies that pay too little tax. Its main objection to the tax treatment […]

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19. Oktober 2016 | Guest State Aid Blog von Gherardo Carullo

Right of Access and State Aid Procedures: a Look at the General Presumption of Confidentiality and the Overriding Public Interest in Case C-271/15, Sea Handling v Commission

airplane flying

Today we are glad to welcome Dr. Gherardo Carullo, research fellow and Ph.D. in law at University of Milan, LL.M. (King’s College London), to our State Aid Blog. He specialises in public law, from a national and European perspective, and in particular in State intervention in the markets, both in his academic studies and in the legal profession. In this […]

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18. Oktober 2016 | State Aid Uncovered von Phedon Nicolaides

Compliance with State Aid Rules in Cohesion Policy: A Special Report of the European Court of Auditors

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Control of State aid by national authorities needs to be strengthened. Typical mistake is to grant aid after a project has started or to subsidise ineligible costs. Aid measures for risk capital, SGEI and R&D appear to be particularly prone to error. Introduction On 4 October 2016, the European Court of Auditors [ECA] published a special report 24/2016 […]

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11. Oktober 2016 | State Aid Uncovered von Phedon Nicolaides

Non-economic Activities, Absolute Impossibility to Recover Incompatible Aid and the Powers of National Courts

State Aid Blogs - SAH blog48 Montessori Lexxion

This article reviews three judgments that were all rendered on 15 September 2016. The first two concern the concept of economic activity. The third is about the rights of national courts to consider the correctness of Commission decisions. The Court of Justice has said clearly that national courts may not question Commission decisions. Economic activity The first two cases […]

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6. Oktober 2016 | State Aid Uncovered von Phedon Nicolaides

Compensation for the Extra Costs Imposed by Law

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When the state imposes obligations which create extra costs for a single undertaking, that undertaking suffers a disadvantage in relation to its competitors. The extra costs are abnormal because normal costs are those borne by all competitors. Introduction On 14 July 2016, the General Court rendered its judgment in case T 143/12, Germany v Commission.1 The outcome was a victory for […]

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1. März 2016 | State Aid Uncovered von Phedon Nicolaides

How to Apply the Market Economy Investor Principle and what Mistakes to Avoid: The Long-running Case of EDF

State Aid Blogs - 17.10. imputability stateaid

A market investor carries out a thorough ex ante analysis of the prospects of an investment before it commits any money. Introduction In 2004, the European Commission concluded, in decision 2005/145, that France granted incompatible aid to Electricite de France [EDF]. The French government had converted tax liability into share capital in EDF. The Commission was of the […]

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23. Februar 2016 | State Aid Uncovered von Phedon Nicolaides

How to Determine the Selectivity of a Tax Measure

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A tax exception is normally a selective measure. However, exceptions which are open to all undertakings are not selective, even if they deviate from the standard tax rate or base. Exceptions which are open only to a few undertakings escape from being classified as selective only when the beneficiary undertakings are in a different legal or factual situation than non-beneficiaries. […]

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16. Februar 2016 | State Aid Uncovered von Phedon Nicolaides

The Boundaries of Non-Economic Infrastructure and the Limits of the Funding Gap Method

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Public funding of assets which are used exclusively by certain undertakings constitutes State aid. If the state chooses to fund certain assets or activities, then it must do so consistently in all regions and in relation to all affected undertakings. Introduction A typical mission of the state is to provide public goods. Normally public funding of public goods is […]

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9. Februar 2016 | State Aid Uncovered von Phedon Nicolaides

Connecting Public and Private Infrastructure

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Public funding of public infrastructure is not State aid. Public funding of connections between public and private infrastructure is not State aid as long as it is open to all users and no fee is charged. Introduction Last week’s article examined the use of a port facility. This week the focus is on a related issue: investment in port […]

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2. Februar 2016 | State Aid Uncovered von Phedon Nicolaides

Possible Advantage from the Exclusive Use of Public-Funded Infrastructure

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The exclusive use of a public asset or an asset funded by public money may confer an advantage in the meaning of Article 107(1) TFEU if several competitors express their interest to use the same asset. Introduction As public authorities are becoming more aware that placing public assets at the disposal of undertakings can involve State aid, they increasingly […]

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26. Januar 2016 | State Aid Uncovered von Phedon Nicolaides

Nature Conservation as a Service of General Economic Interest

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Public funding of non-economic activities does not create State aid problems when any related economic activities are clearly separated. The 2012 SGEI package can apply retroactively. Introduction Member States of the European Union are free to designate the services they consider to be in the general economic interest. However, the wide discretion they enjoy in this respect falls under […]

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19. Januar 2016 | State Aid Uncovered von Phedon Nicolaides

Is there an Advantage when the State Pays for Compulsory Milk Tests?

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Undertakings obtain an advantage when the state pays for their normal costs. Normal costs are costs which are inherent in the operations of undertakings. The costs of meeting legal obligations are normal. Introduction The case law on advantage in the meaning of Article 107(1) TFEU says that aid confers an advantage to undertakings when they obtain a benefit that […]

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12. Januar 2016 | State Aid Uncovered von Phedon Nicolaides

Valuation of Assets Disposed by the State

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The value of an asset can be determined according to different methods. The main methods examine future income or comparable transactions or stock market valuation. Agreements between sellers and buyers that contain indemnification clauses or settle past claims do not reflect the true market value of the sold asset. Introduction 9 December 2015, the General Court rendered its judgment […]

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5. Januar 2016 | State Aid Uncovered von Phedon Nicolaides

An Exception Is Not Necessarily Selective: The Case of the Spanish Tax Lease [1]

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An exception from a tax system is not selective if it is a priori open to any tax payer. Checks by tax authorities to ensure that a measure is applied correctly do not constitute exercise of administrative discretion that may render a measure de facto selective. The impact of a measure on trade and competition cannot be merely presumed just […]

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29. Dezember 2015 | State Aid Uncovered von Phedon Nicolaides

Regional Aid to Car Manufacturers – Part II

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This is the second part of the article that was published last week. Regional aid, like all State aid, must be necessary and proportional. Regional aid is necessary when investment in an assisted region is more costly. Regional aid is proportional when it does not exceed the amount which can make the investment sufficiently profitable or offset the cost disadvantage […]

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