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

25. September 2024 | Guest State Aid Blog von Lexxion Publisher

The Cumulation of State Aid Granted by Different Member States — The Landwärme Case

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Guest State Aid Blog by Professor Leigh Hancher, Nicole Robins and Dr Philipp Schliffke[1] 1 Introduction The Renewable Energy Directive 2018/2001 (‘RED II’) states that ‘the promotion of the production and use of biomethane, its injection into a natural gas grid and cross-border trade create a need to ensure proper accounting of renewable energy as well as avoiding double incentives […]

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17. September 2024 | State Aid Uncovered von Phedon Nicolaides

Although Member States Are Free to Determine their Tax Systems, they Must still Conform with State Aid Rules

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Introduction On 10 September 2024, the Court of Justice [CJEU] delivered its much anticipated judgment, in case C-465/20 P, Commission v Ireland & Apple. It ruled that Ireland had granted incompatible State aid to Apple through preferential tax rulings.[1] The judgment was the result of an appeal by the Commission against the judgment of the General Court in case T-778/16, Ireland […]

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10. September 2024 | State Aid Uncovered von Phedon Nicolaides

Compensation for Switching to a New Broadcasting Frequency

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Introduction Normally the cost of compliance with mandatory regulations may not be offset, partially or fully, by State aid because it lacks incentive effect. The beneficiaries would have to incur those costs anyway. However, even in the case of mandatory compliance, State aid may still have an incentive effect if the undertakings concerned would cease altogether the activity in question. […]

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30. August 2024 | State Aid Uncovered von Phedon Nicolaides

A State-Owned Company Acts as a Private Investor – Part II

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Part II: Advantage The Commission, first, explained that the “(80) intervention must be considered as a whole, considering the purpose and timing of the various stages in which AMCO’s intervention is to be made, within the context and contents of the second arrangement proposal. Whether or not a transaction is in line with market conditions must be established through a […]

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27. August 2024 | State Aid Uncovered von Phedon Nicolaides

A State-Owned Company Acts as a Private Investor

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Introduction When a party to a financial transaction is a company that is owned and controlled by the state, it is difficult to determine whether the transaction is free of State aid. This is because it is not easy to prove that the state had no influence over the decision of the company to carry out that transaction. The Commission […]

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20. August 2024 | State Aid Uncovered von Phedon Nicolaides

Incentive Effect of State Aid to a Large Investment Project

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Introduction The Commission pays particular attention to the incentive effect of aid to large projects that are undertaken by international companies which, by definition, are mobile and can choose from many different locations where to establish their operations. Not only must the aid recipient prove, on the basis of credible evidence, that without the aid the investment would not be […]

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13. August 2024 | State Aid Uncovered von Phedon Nicolaides

A Large Investment Project that is Partly Funded Directly by the EU

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Introduction In July 2024, the Commission published its decision on State aid measure SA.104269 concerning a large investment project [LIP] undertaken by 3Sun in Italy. 3Sun is a subsidiary of Enel, the Italian energy company that is also one of the largest energy companies in Europe. The project would take place in Catania, a city in the NUTS 2 region […]

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6. August 2024 | State Aid Uncovered von Phedon Nicolaides

The Existence of State Aid Must Be Proven on the Basis of Credible Evidence

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Introduction This article reviews two cases in which courts found that it had not been proven that all of the criteria of Article 107(1) TFEU had been satisfied. Case I: Not being able to prove that the measure is attributed to a decision of the state With decision 2024/2033, published in OJ L, 29 July 2024, the Commission corrected its […]

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30. Juli 2024 | State Aid Uncovered von Phedon Nicolaides

State Aid Measures May not Infringe EU Law outside the Field of State Aid

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Introduction In December 2020, the Commission approved State aid scheme SA.59029 by which Italy compensated airlines for damage they had suffered as a result of covid-19-related restrictions, in the period from 1 March to 15 June 2020. Eligible airlines were only those that were licensed in Italy. The aid was approved on the basis of Article 107(2)(b) TFEU. In May […]

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23. Juli 2024 | State Aid Uncovered von Phedon Nicolaides

Electricity Produced from High-Efficiency Combined Heat & Power Plants

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News: The Commission has approved a draft block exemption regulation declaring certain categories of aid in the rail, inland waterways and multimodal transport sector compatible with the internal market on the basis of Article 93. The draft regulation can be accessed at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:C_202404539 Introduction The EU’s Energy Efficiency Directive [EED] [Directive 2012/27, as last amended in 2023 by Directive 2023/1791] […]

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6. August 2024 | State Aid Uncovered von Phedon Nicolaides

The Existence of State Aid Must Be Proven on the Basis of Credible Evidence

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Introduction This article reviews two cases in which courts found that it had not been proven that all of the criteria of Article 107(1) TFEU had been satisfied. Case I: Not being able to prove that the measure is attributed to a decision of the state With decision 2024/2033, published in OJ L, 29 July 2024, the Commission corrected its […]

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30. Juli 2024 | State Aid Uncovered von Phedon Nicolaides

State Aid Measures May not Infringe EU Law outside the Field of State Aid

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Introduction In December 2020, the Commission approved State aid scheme SA.59029 by which Italy compensated airlines for damage they had suffered as a result of covid-19-related restrictions, in the period from 1 March to 15 June 2020. Eligible airlines were only those that were licensed in Italy. The aid was approved on the basis of Article 107(2)(b) TFEU. In May […]

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23. Juli 2024 | State Aid Uncovered von Phedon Nicolaides

Electricity Produced from High-Efficiency Combined Heat & Power Plants

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News: The Commission has approved a draft block exemption regulation declaring certain categories of aid in the rail, inland waterways and multimodal transport sector compatible with the internal market on the basis of Article 93. The draft regulation can be accessed at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:C_202404539 Introduction The EU’s Energy Efficiency Directive [EED] [Directive 2012/27, as last amended in 2023 by Directive 2023/1791] […]

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18. Juli 2024 | State Aid Uncovered von Phedon Nicolaides

Compliance with EU State Aid Rules

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On 8 July 2024, the European Court of Auditors published its Overview of the Assurance Framework and the Key Factors Contributing to Errors in 2014-2020 Cohesion Spending, (Review 3, 2024) The main findings of the ECA concerning compliance with State aid rules can be summarised in the following two tables. 1) Most frequent errors [2018-22] (% of all errors) and […]

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16. Juli 2024 | State Aid Uncovered von Phedon Nicolaides

Repayment of Incompatible State Aid Is Inescapable

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Introduction Companies may pay taxes in several Member States of the EU or in third countries. This fact by itself has no bearing in an assessment of whether preferential tax treatment in a Member State may constitute State aid. However, it becomes relevant when incompatible aid is to be recovered and the granting Member State has to determine the amount […]

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9. Juli 2024 | State Aid Uncovered von Phedon Nicolaides

The Commission May Authorise a Public Measure only if it Constitutes State Aid

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Introduction Sometimes the Commission is uncertain whether a public measure constitutes State aid. Nonetheless, it decides not raise objections on the grounds that if the measure constituted State aid, it would be compatible with the internal market. One can understand why the Commission follows this approach. If it is not sure whether a measure falls outside the scope of Article […]

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2. Juli 2024 | State Aid Uncovered von Phedon Nicolaides

Green Energy Certificates

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Introduction Certificates that confirm that an undertaking has bought a certain amount of electricity from renewable sources do not normally involve State aid because they are not traded. However, when they are tradeable and are granted by a public authority for free or for a fee that falls below their market value, they normally involve State aid as they confer […]

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18. Juni 2024 | State Aid Uncovered von Phedon Nicolaides

Obligations Imposed by the State Cannot Justify Tax Exemptions

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Introduction Over the past decade or so, the European Commission has found that multiple port operators have benefitted from State aid in the form of tax exemptions. This aid was in all cases found to be incompatible with the internal market, despite the claims of the port operators that the state had imposed on the public service obligations or that […]

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11. Juni 2024 | State Aid Uncovered von Phedon Nicolaides

Member States May Grant State Aid to Single Beneficiaries

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Introduction The European Court of Justice confirmed, once more, on 30 May 2024, in case C-353/21 P, Ryanair v Commission, that Member States do not have to grant State aid to all undertakings that may be affected by a serious economic disturbance such as a pandemic.2 This is because Member States do not have unlimited resources and because they may […]

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4. Juni 2024 | State Aid Uncovered von Phedon Nicolaides

Special Tax Treatment for a Major Infrastructure Project

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Introduction In April 2013, the Commission received a complaint alleging that State aid had been granted to the Oresund fixed link. The link is a major transport infrastructure project consisting of a bridge, an artificial island and tunnels between Denmark and Sweden. In October 2014, the Commission concluded that the public funding of the hinterland road and rail connections was […]

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27. November 2014 | Guest State Aid Blog von Juan Jorge Piernas Lopez

Tax Rulings and State Aid: Now or Never

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This comment looks at the Commission’s decisions to open in-depth investigations into the tax treatment of Apple, Starbucks and Fiat Finance and Trade by Ireland, The Netherlands and Luxembourg. The European Commission has recently opened three in-depth investigations under Article 108(2) TFEU concerning tax rulings in Ireland, The Netherlands and Luxembourg with regard to the corporate income tax to be paid by Apple, Starbucks […]

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