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

14. Dezember 2021 | State Aid Uncovered von Phedon Nicolaides

First Case of a “Private Debtor” Test?

State Aid Blogs - Blog 51 KV

State Aid Blogs - Blog 51 KV

A public authority acting as a “private debtor” tries to minimise the amount that it has to pay. Introduction In assessing whether commercial transactions between public authorities and undertakings are free of State aid, the European Commission and EU courts apply the market economy investor principle [MEIP]. In essence, this principle tests whether a public investor behaves like a private […]

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7. Dezember 2021 | State Aid Uncovered von Phedon Nicolaides

An Unusual Case of a “Self Notification” of State Aid by an Aid Beneficiary

State Aid Blogs - Blog 50 KV

State Aid Blogs - Blog 50 KV

Aid beneficiaries may not “notify” State aid to the Commission. Only Member States may notify aid. Beneficiaries of non-notified aid may ask national courts to penalise the granting authorities. Introduction What should an undertaking do when it finds out that a public measure from which it has been benefitting contains State aid that has not been notified to the European […]

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30. November 2021 | State Aid Uncovered von Phedon Nicolaides

When Does an Amendment of an Existing Aid Make it a New Aid?

State Aid Blogs - Blog KV 49

State Aid Blogs - Blog KV 49

Existing aid becomes new aid if any amendment affects the assessment of its compatibility with the internal market. Introduction Member States often amend and adjust State aid measures after they are approved by the Commission. Such changes must be carried carefully because they can turn an existing aid into new aid and all new aid has to be notified to […]

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30. November 2021 | State Aid Uncovered von Phedon Nicolaides

Public Funding of an Undertaking in a Closed Sector

State Aid Blogs - Blog Visual 48

State Aid Blogs - Blog Visual 48

Public funding of undertakings in sectors closed to competition does not constitute State aid. A sector is closed to competition when competition on and for the market is precluded by law. Introduction Determining when State aid does not affected cross-border trade is both difficult and tricky. But there is one exception; when the sector is closed to competition. A sector […]

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23. November 2021 | State Aid Uncovered von Phedon Nicolaides

6th Revision of the Temporary Framework for Covid-19 State Aid

State Aid Blogs - Blog 47 KV

State Aid Blogs - Blog 47 KV

Introduction On Thursday, 18 November 2021, the European Commission adopted a sixth amendment to the Temporary Framework [TF] for State aid measures to combat covid-19. The document laying down the new amendments can be accessed here: https://ec.europa.eu/competition-policy/document/download/a822acec-f0c6-4c8c-ab49-fc2dd34188ec_en The TF was scheduled to expire on 31 December 2021. The new amendment extends its validity to 30 June 2022. It also changes […]

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16. November 2021 | State Aid Uncovered von Phedon Nicolaides

Selectivity and Tax Measures

The reference system for determining the selectivity of a tax measure must have its own logic and be autonomous and its identification depends on the content, structure and specific effects of the applicable rules. A measure that does not exclude any particular undertaking can be selective if it treats differently undertakings which are in similar situations. Introduction On 6 October […]

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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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31. August 2021 | State Aid Uncovered von Phedon Nicolaides

Public Funding of an Undertaking in a Closed Sector

State Aid Blogs - 35 ivan bandura Ac97OqAWDvg unsplash

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 von Phedon Nicolaides

It is Difficult to Challenge a Commission Decision Opening the Formal Investigation Procedure

State Aid Blogs - pablo hermoso 8It1EzstbfI unsplash

State Aid Blogs - pablo hermoso 8It1EzstbfI unsplash

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 von Phedon Nicolaides

The Problem of Multiple Awards of Aid to the Undertaking and to the Same Group

State Aid Blogs - 33 jc gellidon 1g3qVp7ynX4 unsplash

State Aid Blogs - 33 jc gellidon 1g3qVp7ynX4 unsplash

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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10. August 2021 | State Aid Uncovered von Phedon Nicolaides

When Do Legal Exemptions Constitute State Aid?

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State Aid Blogs - 32 ibrahim boran r0zrjWheW2g unsplash 1

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 von Phedon Nicolaides

Methods for Determining Property Value

State Aid Blogs - luke thornton yRo4KoUSBBw unsplash

State Aid Blogs - luke thornton yRo4KoUSBBw unsplash

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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27. Juli 2021 | State Aid Uncovered von Phedon Nicolaides

A Rare Commission Decision on an SGEI Measure that Could Have Been Exempted from Notification

State Aid Blogs - juliana malta Uy0Bq8vYjk4 unsplash

State Aid Blogs - juliana malta Uy0Bq8vYjk4 unsplash

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. Juli 2021 | State Aid Uncovered von Phedon Nicolaides

The Italian Health System Is not Economic in Nature

State Aid Blogs - 29 camilo jimenez vGu08RYjO s unsplash 1

State Aid Blogs - 29 camilo jimenez vGu08RYjO s unsplash 1

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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13. Juli 2021 | State Aid Uncovered von Phedon Nicolaides

Existing Aid, New Aid and Retroactive Application of a Block Exemption Regulation

State Aid Blogs - 28 reuben teo XvxFqD3uUEk unsplash 16.9

State Aid Blogs - 28 reuben teo XvxFqD3uUEk unsplash 16.9

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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6. Juli 2021 | State Aid Uncovered von Phedon Nicolaides

Disentangling the Impact of Covid-19 from other Business Problems

State Aid Blogs - 27 jan rosolino MlNcS rrU6k unsplash 1

State Aid Blogs - 27 jan rosolino MlNcS rrU6k unsplash 1

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. Juni 2021 | State Aid Uncovered von Phedon Nicolaides

Amazon and the Difficulty of Finding a Comparable Tax Payer

State Aid Blogs - 26 christian wiediger rymh7EZPqRs unsplash

State Aid Blogs - 26 christian wiediger rymh7EZPqRs unsplash

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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