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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1. August 2017  |   State Aid Uncovered by Phedon Nicolaides

Collective Insolvency and the GBER
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The eligibility of an aid applicant and the legality of the aid are determined at the point when the aid is granted. If afterwards the aid recipient ceases to be an SME or enters in financial difficulties it is not a relevant issue.   Introduction When Member States grant aid on the basis of the General Block Exemption Regulation [Regulation […]
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27. July 2017  |   Guest State Aid Blog by Lexxion Publisher

15th Jubilee Feature – State Aid Experts Paying Court to EStAL: Birgit Haslinger
Since 2002 Lexxion Publisher’s European State Aid Law Quarterly – EStAL serves as a forum for dialogue and deliberation on all issues related to State aid. On the occasion of our 15th anniversary special feature we have gathered our State aid family to reflect upon their joint journey together with our precious EStAL and of course our favourite topic State […]
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25. July 2017  |   State Aid Uncovered by Phedon Nicolaides

Transfer of Trademarks
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The free transfer of a trademark that belongs to the state confers two possible advantages to the new owner if there is a market for that trademark.   Introduction When a public authority places at the disposal of an undertaking a public asset, it confers to that undertaking a competitive advantage. The competitive advantage is eliminated whenever that public authority […]
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18. July 2017  |   State Aid Uncovered by Phedon Nicolaides

Even the Catholic Church Is not Absolved from State Aid Rules: The Essence of Economic Activity – PART II
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Purely religious activities and education funded by the state are not economic in nature.   Read the I. part of the article, here. Selective economic advantage The Court proceeded to examine the possible existence of a selective economic advantage. It first recalled, in paragraph 65, that the concept of State aid covers only those public measures which favour certain undertakings “or” […]
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11. July 2017  |   State Aid Uncovered by Phedon Nicolaides

Even the Catholic Church Is not Absolved from State Aid Rules: The Essence of Economic Activity – PART I
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Purely religious activities and education funded by the state are not economic in nature. Introduction On 27 June 2017 the Court of Justice ruled in case C‑74/16, Congregación de Escuelas Pías Provincia Betania v Ayuntamiento de Getafe.[1] The ruling was in response to a request from a Spanish administrative court dealing with a tax dispute between religious schools and the municipality of […]
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6. July 2017  |   Guest State Aid Blog by Lexxion Publisher

15th Jubilee Feature – State Aid Experts Paying Court to EStAL: Ilkka Aalto-Setälä
Since 2002 Lexxion Publisher’s European State Aid Law Quarterly – EStAL serves as a forum for dialogue and deliberation on all issues related to State aid. On the occasion of our 15th anniversary special feature we have gathered our State aid family to reflect upon their joint journey together with our precious EStAL and of course our favourite topic State […]
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4. July 2017  |   State Aid Uncovered by Phedon Nicolaides

Imputability to the State
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State resources and imputability or attribution to the state are two distinct concepts. They must both be satisfied in order for a measure to constitute State aid. Introduction Several Member States have set up “promotional” banks or national development banks. Some of these promotional banks pursue only public policy objectives by channelling cheap funds to SMEs. Some others provide funding […]
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27. June 2017  |   State Aid Uncovered by Phedon Nicolaides

Is there any Advantage for Owners, Operators or Users of Publicly Funded Ports?
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Public funding of ports confers an advantage to their owners, but not for operators chosen competitively or users who pay a market price.   Introduction Few issues have exercised public authorities more than the funding of infrastructure which is used for commercial purposes. This is because State aid may benefit the owner and/or the operator and/or the users of the […]
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22. June 2017  |   Guest State Aid Blog by Lexxion Publisher

15th Jubilee Feature – State Aid Experts Paying Court to EStAL: Sara Gobbato
Since 2002 Lexxion Publisher’s European State Aid Law Quarterly – EStAL serves as a forum for dialogue and deliberation on all issues related to State aid. On the occasion of our 15th anniversary special feature we have gathered our State aid family to reflect upon their joint journey together with our precious EStAL and of course our favourite topic State […]
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20. June 2017  |   State Aid Uncovered by Phedon Nicolaides

The Effectiveness of Clear Guidance: The Case of Broadband Networks
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This blog examines how much aid goes to support broadband networks and what lessons can be drawn from the Commission’s decisional practice.   Introduction A principal objective of the State Aid Modernisation was to free Commission resources from the time-consuming task of checking the conformity of routine measures of State aid. Consequently, the General Block Exemption Regulation was extended to […]
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22. December 2016  |   State Aid Uncovered by Lexxion Publisher

5 most read articles by Phedon Nicolaides in 2016
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Questions around selectivity of tax measures, the private creditor test, the new Commission Notice on the Notion of State Aid and many more have moved and shaped this year’s judgments on State aid. See which articles by Prof. Phedon Nicolaides were the most popular ones in 2016. We have also started an exciting new journey of State aid videos on […]
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20. December 2016  |   State Aid Uncovered by Phedon Nicolaides

Existing v New Aid and Role of National Courts
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Modification of an existing aid measure turns it into a new aid measure if it affects its compatibility with the internal market. National courts must also notify to the Commission any new aid measure they detect.   Introduction On 26 October 2016, the Court of Justice ruled in case C‑590/14 P, DEI v Commission.[1] DEI, the incumbent electricity producer in Greece appealed against […]
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13. December 2016  |   State Aid Uncovered by Phedon Nicolaides

Hungarian Advertisement Tax, Polish Retail Tax and Estonia Package Tax
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Progressive taxes can constitute State aid. Exemption from a packaging tax of packaged goods which are taken abroad is within the logic of the tax system.   Introduction This article reviews three tax measures which levied taxes on specific activities and products. In particular, they concern taxes on advertising, retail sales and an exemption from a tax on product packaging. […]
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6. December 2016  |   State Aid Uncovered by Phedon Nicolaides

Pensions, Public Statements and Private Investors
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The normal costs of an undertaking include all the costs of compliance with the obligations imposed by law. A private investor takes into account all the relevant information at the point in time it decides to invest.     Introduction This article reviews two court judgments both of which concern Orange, the French incumbent telecoms operator. The first judgment finds […]
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29. November 2016  |   State Aid Uncovered by 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 by 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 by 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 by 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 by 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. October 2016  |   State Aid Uncovered by 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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