State Aid Law Blog

State Aid Uncovered Blog

In Lexxion’s State Aid Uncovered blog, Prof. Phedon Nicolaides publishes weekly critical analyses of recent State aid judgments and decisions. Each post presents the key points of a court judgment or EU Commission decision, places it in the context of similar case law or practice, assesses the underlying reasoning and highlights any inconsistencies or contradictions.

Guest contributions from other State aid experts will also be published on the blog at irregular intervals to complement the content of the blog posts.

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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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15. July 2021  |   Guest State Aid Blog by Lexxion Publisher

Public Support to Ultrafast Networks in the Italian NRRP
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As part of the investments to support the digitisation, innovation and competitiveness of the production system[1], the Italian Recovery and Resilience Plan (NRRP) has allocated €6.71 billion for interventions in favor of ultra-fast networks (ultra-broadband and 5G)[2]. The amount will be deployed by 2026 to achieve the objectives defined in the “Italian Strategy for ultra-broadband”[3] in accordance with the EU […]
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13. July 2021  |   State Aid Uncovered by Phedon Nicolaides

Existing Aid, New Aid and Retroactive Application of a Block Exemption Regulation
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Changes to approved aid measures result in new aid. Only purely formal or administrative changes do not turn existing aid into new. Prolongation of an existing aid measure is not purely formal or administrative. Introduction Any change to an approved aid measure that affects its compatibility with the internal market turns it into a new aid that has to be […]
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8. July 2021  |   Guest State Aid Blog by Alexander Rose

The UK’s New Subsidy Control Bill: Targeting a Faster, More Permissive Regime Than EU State Aid Rules
The long awaited Subsidy Control Bill has been published by the UK Government with bold promises that it will “create a new system for subsidies that can enable key domestic priorities, such as levelling up economic growth across the UK and driving our green industrial revolution“.  In this article we identify the main changes immediately emerging from the draft legislation, […]
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6. July 2021  |   State Aid Uncovered by Phedon Nicolaides

Disentangling the Impact of Covid-19 from other Business Problems
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State aid may only compensate for the direct damage caused by covid-19. Introduction Aid that compensates for damage caused by natural disasters or exceptional occurrences is declared by Article 107(2)(b) TFEU to be compatible with the internal market. That is why Article 1(4)(c) of the GBER does not exclude, as is normally the practice, undertakings in difficulty from schemes that […]
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29. June 2021  |   State Aid Uncovered by Phedon Nicolaides

Amazon and the Difficulty of Finding a Comparable Tax Payer
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To apply the Arm’s Length Principle to transactions between two related companies, the Commission must identify the less complex company of the two and compare it to a similar independent company. Methodological errors in the application of the Arm’s Length Principle by national authorities does not necessarily prove the existence of advantage. Introduction On 12 May 2021 the Commission suffered […]
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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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2. March 2021  |   State Aid Uncovered by Phedon Nicolaides

State Aid May be Limited to Undertakings with Close Links with the National Economy (Part II)
State Aid Blogs - StateAidHub blogpost8 9 Ryanair
State aid may be used to compensate airlines licensed by domestic authorities for losses incurred as a result of national travel restrictions. [In case you have missed part I, you can access it here.] Introduction The European Commission acted swiftly to adopt a fairly accommodating and wide-ranging “Temporary Framework” to regulate State aid for the purposes of counter-acting the impact […]
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23. February 2021  |   State Aid Uncovered by Phedon Nicolaides

State Aid May be Limited to Undertakings with Close Links with the National Economy (Part I)
State Aid Blogs - StateAidHub blogpost8 9 Ryanair
State aid may be used to compensate airlines licensed by domestic authorities for losses incurred as a result of national travel restrictions. Introduction The European Commission acted swiftly to adopt a fairly accommodating and wide-ranging “Temporary Framework” to regulate State aid for the purposes of counter-acting the impact of covid-19. The Temporary Framework was welcomed by both Member States and […]
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16. February 2021  |   State Aid Uncovered by Phedon Nicolaides

Liquidity Assistance to Banks to Counter the Effects of Covid-19
State Aid Blogs - StateAidHub blogpost7 Bank Italy
Any direct public support of financial institutions affected by covid-19 has to comply with both State aid rules and the rules of the banking union. Introduction The Temporary Framework for State aid to combat covid-19 excludes financial institutions. But it does not mean that banks do not benefit indirectly from State aid granted to other sectors of the economy. This […]
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9. February 2021  |   State Aid Uncovered by Phedon Nicolaides

The State Acting as a Regulator
State Aid Blogs - StateAidHub blogpost6 NL gambling
When the state acts as a regulator, it does not have to charge a licence fee that maximises its revenue. Introduction Governments can influence the allocation of resources with at least three instruments: subsidisation, taxation and regulation. All three may contain State aid; if subsidies are selective, if taxes allow for exemptions and if regulation involves charges which are not […]
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2. February 2021  |   State Aid Uncovered by Phedon Nicolaides

Helsinki Busses, Loans, Article 93 and Indemnification
State Aid Blogs - StateAidHub blogpost5 Helsinki bus
Bus transportation provided by public authorities constitutes economic activity. Loans given by a public authority to its transport unit have to be priced at market rates. The market value of public assets sold to third parties has to reflect any state indemnities. Temporary Framework The European Commission announced on 28 January 2021 a fifth amendment to the Temporary Framework. [1] […]
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26. January 2021  |   State Aid Uncovered by Phedon Nicolaides

Training and State Resources
State Aid Blogs - StateAidHub blogpost4 training
The definition of quality indicators and the establishment of certificates of quality do not amount to control by the state over the resources belonging to non-state entities. Introduction Consider the case of a public university which decides to finance the proposal of one of its researchers to launch a research project in collaboration with a private company. For sure the […]
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