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

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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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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19. August 2021 | Guest State Aid Blog von Lexxion Publisher

The European Commission’s Opening Decision in the German Lignite Phase-Out Case – Part II.

State Aid Blogs - koenig2 dominik vanyi Mk2ls9UBO2E unsplash

State Aid Blogs - koenig2 dominik vanyi Mk2ls9UBO2E unsplash

The article is based on a legal opinion, that was given to LEAG. Doubts regarding the existence of an advantage – continued Compensation amounts based on a MEO settlement agreement An essential component of the compensation covering the full scope of any damages caused to the operators affected by the early closure is also the avoidance of legal and factual […]

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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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22. Juni 2021 | State Aid Uncovered von Phedon Nicolaides

Is State Aid for Locally Established Undertakings Compatible with the Internal Market?

State Aid Blogs - flight 4454342 1920

State Aid Blogs - flight 4454342 1920

Limitation of State aid to companies which have a durable link with the local economy can be compatible with the internal market. Introduction By prohibiting barriers to free movement and establishment in the internal market, the EU seeks to make the choice of location of a company largely irrelevant. All companies should be treated the same regardless of where they […]

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15. Juni 2021 | State Aid Uncovered von Phedon Nicolaides

State Aid to Group of Companies

In assessing the compatibility of State aid with the internal market, the Commission must also consider previous awards to a legally distinct but related company. In assessing the need for rescue/restructuring aid, the Commission must also consider whether the recipient is a member of a group that can provide internal funding. Introduction Paragraph 11 of the Commission’s Notice on the […]

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8. Juni 2021 | State Aid Uncovered von Phedon Nicolaides

Economic Continuity and Recovery of Indirect State Aid

Special insolvency procedures can confer a selective advantage that constitutes State aid. A recovery order can be extended to the new owner of a company that had received incompatible State aid. Introduction Recipients of State aid that is found to be incompatible with the internal market have to pay it back with interest. This liability for repayment also extend to […]

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1. Juni 2021 | State Aid Uncovered von Phedon Nicolaides

The Impossibility of Proving the Absolute Impossibility to Recover Incompatible State Aid

It is not sufficient to claim that is it absolutely impossible to recover incompatible State aid. It must be shown that alternative methods have been actually tried without success. Introduction It is rather impossible for Member States to prove that it is absolutely impossible to recover State aid that has been found by the Commission, and confirmed by EU courts, […]

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25. Mai 2021 | State Aid Uncovered von Phedon Nicolaides

Compensation for Universal Service Provision

As long as the compensation does not exceed the net extra costs of the universal service activities, it may be used to offset other costs. Introduction The rules on State aid for services of general economic interest [SGEI] are very generous because they allow both investment and operating aid. Yet, it is not easy to comply with those rules because […]

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18. Mai 2021 | State Aid Uncovered von Phedon Nicolaides

State Aid and Essential National Interest

State aid that is necessary for protecting essential national interests can be compatible with the internal market. Introduction State aid should support outcomes that the market by itself cannot achieve. This implies that State aid that is restricted to only one or a few undertakings is unlikely to be capable of delivering the desired outcome. Yet, sometimes there may be […]

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11. Mai 2021 | State Aid Uncovered von Phedon Nicolaides

State Aid Measures May not be Funded through Discriminatory Taxes

A tax that is levied on both imported and domestic products but its revenue finances only domestic products infringes fundamental provisions of the EU Treaty. Introduction Member States finance the generation of electricity from renewable energy sources [RES] with revenue they raise through levies or charges on consumers of electricity. On 14 April 2021, the General Court in judgment in […]

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4. Mai 2021 | State Aid Uncovered von Phedon Nicolaides

Turnover Taxes Can Be Progressive without Being Selective

State Aid Blogs - Taxes

State Aid Blogs - Taxes

Progressive rates can be part of a reference tax system. The reference tax system is, in principle, made up of the tax base, the tax rates and the taxable events. Introduction Progressive turnover taxes were thought to be selective because they are levied on gross revenue before costs are deducted and larger volumes of revenue are taxed at higher rates. […]

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27. April 2021 | State Aid Uncovered von Phedon Nicolaides

Individual Aid Measures to Combat Covid-19

State Aid Blogs - StateAidHub blogpost17 airline

State Aid Blogs - StateAidHub blogpost17 airline

Aid to remedy a serious economic disturbance may be granted to a single company that is important for the national economy. EU law does not extend to competitors a right to the same aid. Introduction Between March 2020 and April 2021, the European Commission has authorised aid totalling more than EUR 2.5 trillion to remedy the serious economic disturbance caused […]

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20. April 2021 | State Aid Uncovered von Phedon Nicolaides

Draft New RDI Framework

State Aid Blogs - StateAidHub blogpost16 RDI

State Aid Blogs - StateAidHub blogpost16 RDI

The new RDI Framework provides continuity with clarity. On Monday, 19 April 2021, the European Commission published the new Regional Aid Guidelines for the period 2022-2027. They can be accessed at: https://ec.europa.eu/competition/state_aid/regional_aid/RAG_2021_adopted_communication.zip Introduction On 8 April 2021, the European Commission published the text of the draft new RDI Framework and launched public consultation.[1] The draft RDI Framework is accompanied by […]

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