Europäisches Beihilfenrecht Blog

State Aid Uncovered by Prof Phedon Nicolaides

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

6. September 2022 | State Aid Uncovered von Phedon Nicolaides

Special Economic Zones

State Aid Blogs - State Aid Uncovered SM posts 29

Member States must check that the State aid claimed by undertakings established in special economic zones concern activities that are actually carried out within those zones. Introduction Several Member States have special economic zones in which companies enjoy preferential tax treatment. These zones can be divided into two categories: those that can be found mostly in the new Member States […]

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30. August 2022 | State Aid Uncovered von Phedon Nicolaides

Support for Research & Innovation in the Context of the Temporary Framework

State Aid Blogs - State Aid Uncovered SM posts 21

Introduction The Temporary Framework [TF] that was introduced in March 2020 expired on 30 June 2022. However, two provisions of the TF remain in force until 31 December 2022. They are investment support for sustainable recovery [section 3.13 of the TF] and solvency support [section 3.14 of the TF]. In the former case, individual aid must be granted before 1 […]

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23. August 2022 | State Aid Uncovered von Phedon Nicolaides

Compensation for the Net Cost of Public Service Obligations (Part II)

State Aid Blogs - State Aid Uncovered SM posts 18 1

Public service obligations must be imposed through an act of entrustment that defines clearly the terms of the service and the duration of the obligation. The “reasonable profit” in the public service compensation should reflect the risk borne by the provider. Introduction In 2009, the Commission received several complaints concerning State aid that Italy had granted to the various shipping […]

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16. August 2022 | State Aid Uncovered von Phedon Nicolaides

Compensation for the Net Cost of Public Service Obligations (Part I)

State Aid Blogs - State Aid Uncovered SM posts 19

Public service obligations must be imposed through an act of entrustment that defines clearly the terms of the service and the duration of the obligation. The “reasonable profit” in the public service compensation should reflect the risk borne by the provider. Introduction In 2009, the Commission received several complaints concerning State aid that Italy had granted to the various shipping […]

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9. August 2022 | State Aid Uncovered von Phedon Nicolaides

Legal Standing of Competitors

State Aid Blogs - State Aid Uncovered SM posts 18

A Commission decision authorising or prohibiting a state aid measure that can be implemented without any intermediate rules is a “regulatory act” that can be challenged by “directly concerned” undertakings. Introduction Any natural or legal person who is the addressee of an act of an EU institution can challenge that act before EU courts. This is a right that is […]

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2. August 2022 | State Aid Uncovered von Phedon Nicolaides

Economic Activities of a Research Organisation (Part II)

State Aid Blogs - State Aid Uncovered SM posts 16

State Aid Blogs - State Aid Uncovered SM posts 16

Introduction Member States use extensively the GBER to support R&D schemes. If we exclude the measures that were implemented in the context of covid-19 and now those which are financed by the recovery and resilience fund, not more than a dozen measures have been notified to the Commission for prior approval since 2014. Therefore, it was rather unusual that in […]

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26. Juli 2022 | State Aid Uncovered von Phedon Nicolaides

Economic Activities of a Research Organisation (Part I)

State Aid Blogs - State Aid Uncovered SM posts 16

State Aid Blogs - State Aid Uncovered SM posts 16

The revenue from the economic activities of a research organisation must cover the full cost of those activities. Introduction Member States use extensively the GBER to support R&D schemes. If we exclude the measures that were implemented in the context of covid-19 and now those which are financed by the recovery and resilience fund, not more than a dozen measures […]

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19. Juli 2022 | State Aid Uncovered von Phedon Nicolaides

The State Behaving Like a Private Land Owner

State Aid Blogs - State Aid Uncovered SM posts

State Aid Blogs - State Aid Uncovered SM posts

A private land owner changes rent at market rates. But it may accept lower rent if the user of the land incurs costs to improve it. Comparative analysis to determine the market value of land must take into account not only the particularities of the various land plots, but also the particularities of the various rental contracts. Introduction When the […]

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12. Juli 2022 | State Aid Uncovered von Phedon Nicolaides

State Guarantees without State Aid

State Aid Blogs - State Aid Uncovered SM posts 15

State Aid Blogs - State Aid Uncovered SM posts 15

Introduction State guarantees may constitute State aid if they are not priced at market rates. A properly priced guarantee reflects the risk assumed by the public authority that issues it and the collateral, if any, that the beneficiary undertaking can pledge. The State aid that is embedded in a guarantee that is priced below the relevant market rate is operating […]

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5. Juli 2022 | State Aid Uncovered von Phedon Nicolaides

Why Grant a Loan to an Undertaking in Difficulty?

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State Aid Blogs - State Aid Uncovered SM posts 14

When a market operator invests in an undertaking in difficulty it also considers the possibility of restructuring, sale or closure. Introduction The answer to the question posed in the title of this article is “because the loan enables the undertaking to become viable again and repay the loan with interest”. It is now well established in the case law that […]

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7. Juni 2022 | State Aid Uncovered von Phedon Nicolaides

A Rare Commission Decision on SGEI Interpreting Decision 2012/21

State Aid Blogs - State Aid Uncovered SM posts 10

State Aid Blogs - State Aid Uncovered SM posts 10

A non-profit provider of free services which are in competition with similar services on the market is an undertaking. Introduction The decentralisation of State aid policy of the past decade has made it easier for the Member States to achieve their public policy objectives. By using blog exemption regulations and decisions, they can grant State aid faster, without having to […]

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31. Mai 2022 | State Aid Uncovered von Phedon Nicolaides

State Aid and Anti-Competitive Practices

State Aid Blogs - State Aid Uncovered SM posts 9

State Aid Blogs - State Aid Uncovered SM posts 9

State aid to undertakings that engage in anti-competitive practices is incompatible with the internal market. Introduction For State aid to be compatible with the internal market, it may not infringe any other provision of the Treaty or secondary legislation. Occasionally, the Commission finds State aid measures to be incompatible with the internal market because they contain clauses that exclude foreign […]

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24. Mai 2022 | State Aid Uncovered von Phedon Nicolaides

Another Case of Rescue Aid to an Airline

State Aid Blogs - State Aid Uncovered SM posts 6

State Aid Blogs - State Aid Uncovered SM posts 6

An undertaking does not have to be nationally “important” in order to qualify for rescue aid. Introduction The pandemic has been hard on airlines. For some of them, however, the pandemic simply exacerbated their already existing problems. On 18 May 2022, in case T‑577/20, Ryanair v European Commission, the General Court had to examine the case of State aid to […]

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10. Mai 2022 | State Aid Uncovered von Phedon Nicolaides

Risk Finance

State Aid Blogs - State Aid Uncovered SM posts 5

State Aid Blogs - State Aid Uncovered SM posts 5

Risk finance aid in the form of tax relief based on the GBER must be limited to private investors. Introduction Decisions of the European Commission authorising aid for risk finance are very rare. This is the consequence of the success of the Commission to get Member States to use almost exclusively the General Block Exemption Regulation [GBER] for the design […]

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3. Mai 2022 | State Aid Uncovered von Phedon Nicolaides

The Standard of Proof in State Aid Complaints and the “Informational Disadvantage” of Complainants

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State Aid Blogs - State Aid Uncovered SM posts 4

The Commission must use its investigative powers to seek clarification from Member States in order for it to establish whether a measure constitutes State aid, or is compatible aid, or is existing aid. Introduction Complaints are an important source of information to the Commission. The possibility afforded to undertakings to lodge such complaints with the Commission is intended to dissuade […]

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26. April 2022 | State Aid Uncovered von Phedon Nicolaides

Member States Must Recover of their Own Initiative Illegally Granted Aid

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State Aid Blogs - State Aid Uncovered SM posts 3

Aid granted illegal must be recovered by the granting authority without any need for a prior Commission decision ordering recovery. The amount of recovered aid may be limited to that which is in excess of what is allowed by the GBER. Introduction It is a well-established principle in the case law that a “prudent market operator” is responsible to check […]

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19. April 2022 | State Aid Uncovered von Phedon Nicolaides

Injection of Capital in a Postal Operator

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State Aid Blogs - State Aid Uncovered SM posts 2

The resources of a public undertaking necessarily count as “state resources”, regardless of the degree of autonomy of the public undertaking. However, not every decision of a public undertaking can necessarily be “imputed” to the state. A prudent investor may take into account authorised State aid. A prudent investor may tolerate short-term losses if it can realise sufficient profits in […]

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12. April 2022 | State Aid Uncovered von Phedon Nicolaides

A First Commission Decision on Natural Gas Storage

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State Aid Blogs - State Aid Uncovered SM posts 1

Compensation that guarantees a normal or fair rate of return eliminates risk that is inherent in market transactions and therefore confers an advantage in the meaning of Article 107(1) TFEU. Introduction On 23 March 2022, the European Commission announced plans to mitigate the spike in energy prices caused by the war in Ukraine. Chief among those plans were proposals for […]

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5. April 2022 | State Aid Uncovered von Phedon Nicolaides

Intra-State Transfers and the Discretion of Public Authorities

State Aid Blogs - State Aid Uncovered SM posts

State Aid Blogs - State Aid Uncovered SM posts

Resources transferred from one public authority to another for the purpose of being used to subsidise undertakings do not fall within the scope of Article 107(1) TFEU if the recipient authority has discretion in their disbursement. Introduction A public authority that carries out economic activities becomes an undertaking that is subject to the prohibition of Article 107(1) TFEU. When the […]

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25. März 2022 | State Aid Uncovered von Phedon Nicolaides

A New Temporary Crisis Framework

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State Aid Blogs - State Aid Uncovered SM posts 5

Introduction A new Temporary Framework which is called “Temporary Crisis Framework” [TCF] to distinguish it from the currently applicable Temporary Framework on covid-19 related State aid was adopted on 23 March 2022, almost two years to the date of the publication of the rules on covid-19 related State aid.[1] The purpose of the TCF is to enable Member States to […]

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