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

22. Februar 2022 | State Aid Uncovered von Phedon Nicolaides

Compensation for Damage and De Minimis Aid

State Aid Blogs - Social Media posts 4

State Aid Blogs - Social Media posts 4

Compensation for damage caused by protected animals is State aid. Member States may categorise compensatory payments as de minimis aid and refuse to make payments in excess of the de minimis threshold. Introduction Advantage in the meaning of Article 107(1) TFEU is any benefit granted by the state that is not available under normal market conditions. Normal market conditions are […]

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15. Februar 2022 | State Aid Uncovered von Phedon Nicolaides

Compensation and State Aid

State Aid Blogs - Social Media posts 3 2

State Aid Blogs - Social Media posts 3 2

An event that causes damage for which the state is liable is distinct from the act that confers the right for compensation. Introduction The concept of State aid covers all resources that are controlled by the state, regardless of the reason why such resources may be transferred to or put at the disposal of an undertaking. On 25 January 2022, […]

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8. Februar 2022 | State Aid Uncovered von Phedon Nicolaides

The Mysterious “Substantial” Competitive Effect

State Aid Blogs - Social Media posts 3

State Aid Blogs - Social Media posts 3

State aid has a “substantial” effect on competitors when it has a direct and negative impact on their market positions that goes beyond the typical influence of aid on competitive relationships. Introduction State aid always harms competition and competitors. A public measure that has no effect on competition is not State aid. Therefore, it is not enough for a company […]

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1. Februar 2022 | State Aid Uncovered von Phedon Nicolaides

I. The Commission Need not Always Open the Formal Investigation Procedure before Correcting a Faulty Decision II. Fines for Failure to Recover Incompatible Aid

State Aid Blogs - WhatsApp Image 2022 01 31 at 15.42.44

State Aid Blogs - WhatsApp Image 2022 01 31 at 15.42.44

The formal investigation procedure need not be re-opened when the fault lies in the legal assessment of the measure in question. Incompatible State aid has to be recovered quickly and effectively, even from insolvent undertakings. Introduction This article examines two recent judgments concerning Greece. The first judgment explains when the Commission does not have to re-open the formal investigation procedure […]

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25. Januar 2022 | State Aid Uncovered von Phedon Nicolaides

Duplication of Infrastructure Does not Promote Regional Development

State Aid Blogs - Social Media posts 6

State Aid Blogs - Social Media posts 6

A private investor is not interested in regional development. A private investor recoups its investment in infrastructure from revenue from the operation of that infrastructure. Duplication of infrastructure does not contribute to regional development. Introduction In 2015 the European Commission caused a buzz in the State aid community when it decided that investment aid granted to a small Polish airport […]

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18. Januar 2022 | State Aid Uncovered von Phedon Nicolaides

A Non-Selective Financial Tax with a Narrow Scope

State Aid Blogs - Social Media posts 3

State Aid Blogs - Social Media posts 3

The scope of a tax must be objectively defined in order for those excluded from the tax not to benefit from a selective advantage. Introduction Taxes are burdens, so they fall outside the scope of Article 107(1) TFEU which prohibits selective benefits funded with state resources. Normally, Article 107(1) applies to benefits from tax exemptions or tax derogations which result […]

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11. Januar 2022 | State Aid Uncovered von Phedon Nicolaides

Private Creditor and the Ability of the Debtor to Repay

State Aid Blogs - Social Media posts 1

State Aid Blogs - Social Media posts 1

There are no rules as to the promptness with which a private creditor must act in order to enforce its claims. However, a hypothetical private creditor need not demand that a debtor be declared insolvent as soon as it fails, without taking any account of its longer-term potential. Introduction When the state accepts to restructure debt owed to it or […]

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4. Januar 2022 | State Aid Uncovered von Phedon Nicolaides

Public Funding of an Energy Infrastructure Project

State Aid Blogs - Social Media posts 2

State Aid Blogs - Social Media posts 2

State aid up to 100% of the funding gap of a project can be compatible with the internal market. Introduction The European Commission approved investment aid for a Liquefied Natural Gas [LNG] terminal in Alexandroupolis in northern Greece [case SA.55526]. The project involves the following: A Floating Storage Regasification Unit [FSRU] for the storage and regasification of LNG. The construction […]

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28. Dezember 2021 | State Aid Uncovered von Phedon Nicolaides

Illegal Aid Cannot be Regularised a Posteriori

A Commission decision finding non-notified aid to be compatible with the internal market cannot remedy the illegality that existed before the Commission decision. Introduction In November 2021, the General Court rejected an appeal by the recipient of illegal aid who had asked the Commission to declare the aid compatible with the internal market even though the Member State concerned had […]

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3. Januar 2022 | State Aid Uncovered von Phedon Nicolaides

How to Determine Selectivity

State Aid Blogs - Social Media posts

State Aid Blogs - Social Media posts

A measure is selective when it excludes undertakings that are equally capable of contributing to the achievement of its objectives. Introduction Since no two undertakings are exactly the same, how can it be determined whether they are in a comparable situation? Differences in their features such as size or the type of technology they use do not necessarily mean that […]

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9. November 2021 | State Aid Uncovered von Phedon Nicolaides

Compensatory Payments and State Resources

State Aid Blogs - blog 45 KV

State Aid Blogs - blog 45 KV

Funds used in compensation mechanisms mandated by the state become state resources Introduction The Court of Justice has stressed repeatedly that any resource over which the state can exercise control becomes a state resource, regardless of whether it is managed by a public authority or a private entity. Member States, however, keep inventing novel and complicated arrangements in which mandated […]

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2. November 2021 | State Aid Uncovered von Phedon Nicolaides

Market Economy Operator

State Aid Blogs - Blog 44

State Aid Blogs - Blog 44

Comparing prices charged by different airports is not a suitable method for detecting the existence of selective advantages. Introduction Airports enter into complex agreements with airlines. When airports are in public ownership or operate under a mandate by the state, their agreements with airlines may contain State aid. It is, however, very difficult to detect State aid in these agreements […]

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26. Oktober 2021 | State Aid Uncovered von Phedon Nicolaides

Legitimate Expectations and the “Right” to State Aid

State Aid Blogs - Blog 43 key visual

State Aid Blogs - Blog 43 key visual

Legitimate expectations can only be created by EU institutions giving unambiguous and unconditional assurances. No undertaking enjoys a right to State aid. Member States may reduce the amount of State aid they grant. Introduction As the process of transition to green economy accelerates, Member States have been reducing the subsidies they promised to grant to the early investors in the […]

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19. Oktober 2021 | State Aid Uncovered von Phedon Nicolaides

Is Anyone who is Affected by State Aid an “Interested Party” that can Challenge a Commission Decision?

State Aid Blogs - blog 42 16 9

State Aid Blogs - blog 42 16 9

A non-competitor cannot normally claim to be “interested party”. The Commission does not have to prove to the normal legal standard the existence of state aid when it opens the formal investigation procedure. Introduction This week’s article reviews two recent judgments: one on the status of “interest party” and another on the obligations of the Commission when it opens the […]

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12. Oktober 2021 | State Aid Uncovered von Phedon Nicolaides

Security of Supply May Justify a Deviation from Public Procurement Rules

State Aid Blogs - steta aid blog photo

State Aid Blogs - steta aid blog photo

Security of supply justifies a deviation from the normal procurement procedures as long as the same security cannot be achieved through a competitive selection of suppliers. Introduction Point 19 of the 2012 SGEI Framework requires that the assignment of a public mission to an undertaking must comply with the applicable public procurement rules. It does not impose an obligation for […]

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5. Oktober 2021 | State Aid Uncovered von Phedon Nicolaides

What the Commission Must Find Out in the Preliminary Examination of State Aid: The Lessons from Tempus Energy on what is Sufficient Information

State Aid Blogs - to use

State Aid Blogs - to use

The Commission must open the formal investigation procedure when it has serious doubts based on the information available to it. Introduction Once I asked an administrator of an institute where I used to work why I was not informed about certain benefits that were available to staff. “Because you did not ask”, he answered. How could I ask about something […]

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28. September 2021 | State Aid Uncovered von Phedon Nicolaides

A Faulty Sale Procedure Can Lead to Presumption of State Aid and Annulment of a State Aid Decision

State Aid Blogs - stateaid39

State Aid Blogs - stateaid39

A sale of public assets cannot be presumed to be free of State aid when bidders are not treated equally. Introduction When the state sells a company it owns, there is a presumption that no State aid benefits either the buyer or the company that is sold if the sale is open transparent, non-discriminatory, unconditional and the chosen buyer is […]

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21. September 2021 | State Aid Uncovered von Phedon Nicolaides

Market Economy Operator Test: Timisoara Airport & Wizz Air

State Aid Blogs - 38 pexels anugrah lohiya 723240

State Aid Blogs - 38 pexels anugrah lohiya 723240

Public funding of activities that fall within the remit of the state does not constitute state aid. Although the presence of a credible ex ante business plan based on realistic assumptions is a strong indicator that the MEOT is satisfied, its absence does not necessarily prove that the MEOT is failed. Introduction Following a complaint by Carpatair, the European Commission […]

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14. September 2021 | State Aid Uncovered von Phedon Nicolaides

Pricing of Guarantees

State Aid Blogs - 37 liam mckay VHWyqXsWHg0 unsplash

State Aid Blogs - 37 liam mckay VHWyqXsWHg0 unsplash

A market guarantee premium must cover all costs assumed by the guarantor including the cost of possible default, cost of capital and the cost of administering the guarantee. Introduction Financial instruments are much in vogue. The Pan-European Guarantee Fund and to a smaller extent the Recovery and Resilience Fund are implemented through financial instruments that seek to leverage private participation. […]

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7. September 2021 | State Aid Uncovered von Phedon Nicolaides

Assignment of Public Service Obligations

State Aid Blogs - wordyannik mika GjFbKfI874o unsplash

State Aid Blogs - wordyannik mika GjFbKfI874o unsplash

The compensation for public service obligations may include reasonable profit and incentives for cost reduction. Introduction Member States have discretion to define services they consider to be in the general economic interest [SGEI]. However, they need to justify that definition. The Court of Justice has ruled on numerous occasions that an SGEI has “special characteristics” that set it apart from […]

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