State Aid Law Blog

State Aid Uncovered by Prof Phedon Nicolaides

On a weekly basis Phedon Nicolaides posts critical analysis pieces on the latest State aid judgments and decisions on his blog State Aid Uncovered. Each article presents the main points of a court ruling or Commission‘s decision, places them in the context of similar case law or practice, assesses the underlying reasoning, and identifies any inconsistencies or contradictions.
Occasional guest blog posts by other State aid experts complement the State aid knowledge hub.

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Professor at Maastricht University; Professor at University of Nicosia, and Academic Director at Lexxion Training

31. August 2021  |   State Aid Uncovered by Phedon Nicolaides

Public Funding of an Undertaking in a Closed Sector
State Aid Blogs - 35 ivan bandura Ac97OqAWDvg unsplash
Public funding of undertaking in a closed sector [legal monopoly] does not distort competition and therefore does not constitute State aid. A legal monopoly has to conform with internal market rules. Introduction In July 2017, the Commission received a complaint by “C” [the complainant] alleging that Germany had granted State aid to two companies, RVV and Nordwasser, which supplied fresh […]
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24. August 2021  |   State Aid Uncovered by Phedon Nicolaides

It is Difficult to Challenge a Commission Decision Opening the Formal Investigation Procedure
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The assessment of the Commission in an “opening decision” is only provisional. The Commission is not required to prioritise its investigations or to extend them to anyone who may be in a similar situation. The right of non-discrimination is not violated when the Commission chooses to investigate some instead of all possible cases of State aid. An individual measure that […]
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17. August 2021  |   State Aid Uncovered by Phedon Nicolaides

The Problem of Multiple Awards of Aid to the Undertaking and to the Same Group
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Multiple awards of aid to the same undertaking are allowed as long as they cover different costs. Multiple awards of aid to the same group are allowed as long as aid does not leak from one undertaking in the group to another. Introduction In the first half of 2021, the General Court ruled in ten cases of appeal lodged by […]
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19. August 2021  |   Guest State Aid Blog by Lexxion Publisher

The European Commission’s Opening Decision in the German Lignite Phase-Out Case – Part II.
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The article is based on a legal opinion, that was given to LEAG. Doubts regarding the existence of an advantage – continued Compensation amounts based on a MEO settlement agreement An essential component of the compensation covering the full scope of any damages caused to the operators affected by the early closure is also the avoidance of legal and factual […]
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12. August 2021  |   Guest State Aid Blog by Lexxion Publisher

The European Commission’s Opening Decision in the German Lignite Phase-Out Case – Part I.
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The article is based on a legal opinion, that was given to LEAG. Introduction The European Green Deal envisages a clean and decarbonised energy sector with net-zero greenhouse gas emissions by 2050.[1] These ambitious objectives entrust the Member States with enormous tasks in connection with the transformation process, which must always be designed in a proportionate manner. For this purpose, […]
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10. August 2021  |   State Aid Uncovered by Phedon Nicolaides

When Do Legal Exemptions Constitute State Aid?
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Exemption from a fine does not constitute State aid when it is based on transparent and pre-determined criteria. Infringement of EU law determines the compatibility of State aid, not the existence of State aid. Introduction An exemption from legal requirements that confers a selective advantage does not necessarily amount to State aid. In most cases, when beneficiaries are found not […]
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3. August 2021  |   State Aid Uncovered by Phedon Nicolaides

Methods for Determining Property Value
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Member States may use different methods for determining the value of property as long as they produce similar results. Introduction The base for property taxation is normally the value of the property, not size or location. The difficulty in determining the value of property is that land or buildings have no intrinsic value. It all depends on the purpose for […]
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29. July 2021  |   Guest State Aid Blog by Lexxion Publisher

Pre- Notifications, Preliminary Investigations and the Rights of Third Parties in State Aid Procedures – Beware of the Black Hole!
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The persistently cautious approach of the Court of Justice of the European Union (CJEU) to recognizing any really meaningful rights for third parties in State aid proceedings before the European Commission as well as in judicial proceedings is well-known and frequently criticized. With the recent adoption of the new Climate Law at the end of June and the official launch […]
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27. July 2021  |   State Aid Uncovered by Phedon Nicolaides

A Rare Commission Decision on an SGEI Measure that Could Have Been Exempted from Notification
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A public service obligation must be imposed by an act of entrustment that describes in detail the terms of the obligation, identifies the undertaking that offers the service and lays down procedures for preventing over-compensation. Introduction The purpose of Commission Decision 2012/21 on services of general economic interest [SGEI] is, like the GBER, to exempt certain aid measures from prior […]
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20. July 2021  |   State Aid Uncovered by Phedon Nicolaides

The Italian Health System Is not Economic in Nature
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Certain elements of competition that raise efficiency do not undermine the social solidarity foundations of a health care system. Introduction A question that has been addressed by the Court of Justice but not in sufficient detail is whether the providers of non-economic health services can compete with each other. The answer is conditionally affirmative. Competition that does not undermine the […]
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11. May 2021  |   State Aid Uncovered by Phedon Nicolaides

State Aid Measures May not be Funded through Discriminatory Taxes
A tax that is levied on both imported and domestic products but its revenue finances only domestic products infringes fundamental provisions of the EU Treaty. Introduction Member States finance the generation of electricity from renewable energy sources [RES] with revenue they raise through levies or charges on consumers of electricity. On 14 April 2021, the General Court in judgment in […]
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4. May 2021  |   State Aid Uncovered by Phedon Nicolaides

Turnover Taxes Can Be Progressive without Being Selective
State Aid Blogs - Taxes
Progressive rates can be part of a reference tax system. The reference tax system is, in principle, made up of the tax base, the tax rates and the taxable events. Introduction Progressive turnover taxes were thought to be selective because they are levied on gross revenue before costs are deducted and larger volumes of revenue are taxed at higher rates. […]
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27. April 2021  |   State Aid Uncovered by Phedon Nicolaides

Individual Aid Measures to Combat Covid-19
State Aid Blogs - StateAidHub blogpost17 airline
Aid to remedy a serious economic disturbance may be granted to a single company that is important for the national economy. EU law does not extend to competitors a right to the same aid. Introduction Between March 2020 and April 2021, the European Commission has authorised aid totalling more than EUR 2.5 trillion to remedy the serious economic disturbance caused […]
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20. April 2021  |   State Aid Uncovered by Phedon Nicolaides

Draft New RDI Framework
State Aid Blogs - StateAidHub blogpost16 RDI
The new RDI Framework provides continuity with clarity. On Monday, 19 April 2021, the European Commission published the new Regional Aid Guidelines for the period 2022-2027. They can be accessed at: https://ec.europa.eu/competition/state_aid/regional_aid/RAG_2021_adopted_communication.zip Introduction On 8 April 2021, the European Commission published the text of the draft new RDI Framework and launched public consultation.[1] The draft RDI Framework is accompanied by […]
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13. April 2021  |   State Aid Uncovered by Phedon Nicolaides

State Guarantee to an Energy Project
State Aid Blogs - StateAidHub blogpost15 gas
A state guarantee can bridge the funding gap of an infrastructure project. Introduction State aid rules allow energy infrastructure projects to be supported by as much aid as is necessary to bridge their “funding gap”; i.e. the difference between the initial investment cost and the present value of their expected net operating revenue which is the future gross revenue minus […]
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6. April 2021  |   State Aid Uncovered by Phedon Nicolaides

Lease Contracts and Competitive Selection
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Vague award criteria can be discriminatory and harm the transparency of the selection procedure. Introduction After receiving a complaint, the Commission opened a formal investigation into alleged State aid granted by the Estonian Ministry of Rural Affairs to AS Tartu Agro, a private limited company, which produced milk, meat and cereals. According to the complaint, the Ministry had granted unlawful […]
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30. March 2021  |   State Aid Uncovered by Phedon Nicolaides

“Global” Assessment of Tax Schemes
State Aid Blogs - StateAidHub blogpost13 Barcelona
It is incumbent on the Commission to carry out a global assessment of tax schemes. But it must take into account only those provisions of schemes that apply ex ante and do not depend on the circumstances of individual tax payers. Only when aid has to be recovered must the provisions that apply to the specific circumstances of individual tax […]
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23. March 2021  |   State Aid Uncovered by Phedon Nicolaides

Exclusive Rights and State Aid
State Aid Blogs - StateAidHub blogpost12 Poste Italiane
Exclusive rights may constitute State aid if they mandate payments with resources over which the state can exercise control. Compensation for the cost of public service obligations may be granted only if the obligations are clear and define a service that is different from market services. Introduction Article 106(1) TFEU requires Member States not to distort competition when they grant […]
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16. March 2021  |   State Aid Uncovered by Phedon Nicolaides

The Pan-European Guarantee Fund: The First State Aid Instrument at EU Level
State Aid Blogs - StateAidHub blogpost11 Funds
The Fund managed by the EIB constitutes State aid granted collectively by participating Member States. Introduction One of the many responses of the European Union to the economic harm wreaked by the pandemic was the establishment of the Pan-European Guarantee Fund [the Fund] by the European Investment Bank. Member States were invited to contribute to the Fund. This is both […]
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9. March 2021  |   State Aid Uncovered by Phedon Nicolaides

Can the Decision of a Private Entity be Imputed to the State?
State Aid Blogs - StateAidHub blogpost7 Bank Italy
A measure is imputable to the state whenever the state is involved in its adoption or shapes the decision that leads to its adoption. Introduction One of the trickiest aspects of determining whether a financial transaction involves State aid is its attribution or imputation to a decision of the state, especially when the entity providing the funding is private. Private […]
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How to Submit a Blog Post

Do you want to share your analysis of a State aid law topic? We invite you to submit your post on, for example: recent European, national or international judgments or legislation with relevance to EU State aid law; new developments, publications, hot topics in EU State aid law. The recommended length of the post is 500-2,000 words incl. references (endnotes). Your analysis will be published under the category ‘Guest State Aid Blog’.

Here’s how you can publish a post on the Blog as a guest author:

Step 1: Submit your draft to Nelly Stratieva at stratieva@lexxion.eu.

Step 2: We at Lexxion will review your draft to make sure its content and quality fit the blog. If needed, they will suggest what improvements you should make.

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