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

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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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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2. Februar 2021 | State Aid Uncovered von Phedon Nicolaides

Helsinki Busses, Loans, Article 93 and Indemnification

State Aid Blogs - StateAidHub blogpost5 Helsinki bus

State Aid Blogs - StateAidHub blogpost5 Helsinki bus

Bus transportation provided by public authorities constitutes economic activity. Loans given by a public authority to its transport unit have to be priced at market rates. The market value of public assets sold to third parties has to reflect any state indemnities. Temporary Framework The European Commission announced on 28 January 2021 a fifth amendment to the Temporary Framework. [1] […]

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26. Januar 2021 | State Aid Uncovered von Phedon Nicolaides

Training and State Resources

State Aid Blogs - StateAidHub blogpost4 training

State Aid Blogs - StateAidHub blogpost4 training

The definition of quality indicators and the establishment of certificates of quality do not amount to control by the state over the resources belonging to non-state entities. Introduction Consider the case of a public university which decides to finance the proposal of one of its researchers to launch a research project in collaboration with a private company. For sure the […]

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19. Januar 2021 | State Aid Uncovered von Phedon Nicolaides

Funding of Public Hospitals

State Aid Blogs - StateAidHub blogpost3 Hospitals

State Aid Blogs - StateAidHub blogpost3 Hospitals

Public healthcare provided in accordance with the principle of social solidarity is not economic in nature. Introduction There are two sectors where economic and non-economic activities mix and cause potential State aid problems: healthcare and education. Healthcare and education provided by public institutions do not differ much from healthcare and education provided by private institutions. The critical difference is not […]

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12. Januar 2021 | State Aid Uncovered von Phedon Nicolaides

A First Evaluation of Covid-19 State Aid

State Aid Blogs - StateAidHub blogpost2 Covid

State Aid Blogs - StateAidHub blogpost2 Covid

There is a significant variation across Member States in terms of the number of aid measures as well as the amount of aid. Introduction On 17 December 2020, the European Parliament published a report evaluating the impact of State aid to combat covid-19.[1] The report was requested by the committee responsible for economic policy. The report is probably the first […]

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5. Januar 2021 | State Aid Uncovered von Phedon Nicolaides

One Agreement, Two Parallel Systems: Subsidies in the Trade and Cooperation Agreement between the EU and the UK

State Aid Blogs - StateAidHub blogpost1 Brexit

State Aid Blogs - StateAidHub blogpost1 Brexit

The agreement on subsidies allows the UK to deviate from EU State aid rules. Introduction After the exit of the United Kingdom [UK] from the European Union [EU] on 31 January 2020, EU State aid rules continued to apply to the UK during a transitional period that came to an end on 31 December 2020. In the closing days of […]

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28. Dezember 2020 | State Aid Uncovered von Phedon Nicolaides

The Time Horizon of a Private Investor

State Aid Blogs - StateAidHub blogpost51

State Aid Blogs - StateAidHub blogpost51

A public authority that claims that it invests for the long term, must still prove that its investment is likely to be profitable. Introduction Public authorities may invest in private companies. However, they need to behave as private investors otherwise they confer an advantage that constitutes State aid. In their defence, public authorities claiming that they act as private investors, […]

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21. Dezember 2020 | State Aid Uncovered von Phedon Nicolaides

Attribution to the State does not necessarily Imply Control by the State

State Aid Blogs - towel 1838210 1920 1

State Aid Blogs - towel 1838210 1920 1

Prices fixed by the state do not necessarily confer control to the state over the private resources which are used to pay those prices. Introduction Judging from how many times EU courts have been asked to interpret the concept of state resources, it seems that one of the most difficult aspects of Article 107(1) TFEU is to determine whether funding […]

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15. Dezember 2020 | State Aid Uncovered von Phedon Nicolaides

The Law, Economics and Art of Compensation for Public Service Obligations

State Aid Blogs - post sign 1893086 1920 1

State Aid Blogs - post sign 1893086 1920 1

State aid in the form of compensation for public service obligations must exclude any intangible benefits from the obligation, but may include reasonable profit. The Commission guidelines for State aid in agriculture and forestry, the block exemption regulations covering agriculture, forestry, fishery and aquaculture, and the Regulation on de minimis aid for fishery and aquaculture have been prolonged to 31 […]

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8. Dezember 2020 | State Aid Uncovered von Phedon Nicolaides

A Rare Case of Altmark-compliant SGEI (Part II)

State Aid Blogs - container 1638068 1920

State Aid Blogs - container 1638068 1920

For a service to be in the general economic interest, it must be shown to fill a gap in the market or to offer what the market fails to provide adequately. [In case you have missed part I, you can access it here.] Introduction Services of general economic interest [SGEI] are important for the functioning of European societies. However, the […]

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1. Dezember 2020 | State Aid Uncovered von Phedon Nicolaides

A Rare Case of Altmark-compliant SGEI (Part I)

State Aid Blogs - container 1638068 1920

State Aid Blogs - container 1638068 1920

For a service to be in the general economic interest, it must be shown to fill a gap in the market or to offer what the market fails to provide adequately. Introduction Services of general economic interest [SGEI] are important for the functioning of European societies. However, the granting of compensation to an undertaking for the provision of SGEI must […]

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