Europäisches Beihilfenrecht Blog

State Aid Uncovered Blog

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. Dezember 2017 | State Aid Uncovered von Phedon Nicolaides

How to Determine whether State Aid Affects Trade

State Aid Blogs - 12.12.17cross border trade StateAid

Article 107(1) requires the assessment of both the direct and indirect impact of a public measure on cross-border trade. The direct impact is the effect on the cross-border movement of products or customers of the aid recipient or of its competitors. The indirect impact is the effect on the cross-border movement of the aid recipient itself or its competitors. […]

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5. Dezember 2017 | State Aid Uncovered von Phedon Nicolaides

Imputability of an Aid Measure to the State Does not Require a Counterfactual

State Aid Blogs - 05.12.Imputability of Aid State aidz

The fact that the state owns an undertaking is not enough to prove that the decisions of that undertaking can be attributed to the state. However, it is sufficient that the state was involved in the particular decision that transferred state resources for the benefit of another undertaking. Introduction Several recent articles on this blog have examined the concept […]

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30. November 2017 | State Aid Uncovered von Phedon Nicolaides

The Legal Basis of the (In)compatibility of Aid Must be Clear

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The European Commission may withdraw a decision, but before it adopts a new decision it must give an opportunity to interested parties to submit their comments, especially, if it changes the legal basis of the assessment of the compatibility of the aid. Introduction The most frequent reasons for which the Commission finds aid to be incompatible with the internal […]

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21. November 2017 | State Aid Uncovered von Phedon Nicolaides

i) Transfer of State Resources, ii) Non-recovery of Incompatible Aid, iii) Primacy of Agricultural Policy over Competition Policy

State Aid Blogs - 21.11.State resources State control

Private resources that come under the control of a public authority become state resources. The only defence for not recovering incompatible aid is absolute impossibility. Agricultural policy objectives take precedence over those of competition policy. Introduction This article reviews a case involving transfer of state resources and a case concerning failure to recovery of incompatible State aid. It also draws […]

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14. November 2017 | State Aid Uncovered von Phedon Nicolaides

Existing v New Aid

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Any alteration of an existing aid measure can affect the substance of the measure itself. A deviation from the conditions of authorisation may turn existing aid into new aid. Alteration or deviation from the conditions of authorisation that affect the compatibility of an existing aid measure, can result in the granting of new aid. A Member State that alters an […]

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7. November 2017 | State Aid Uncovered von Phedon Nicolaides

Indirect v Secondary Effects of State Aid

State Aid Blogs - 07.11.sardinia airport State aid

The prohibition of State aid in Article 107(1) of the Treaty applies both to the direct and indirect beneficiaries of aid. The direct and indirect beneficiaries are those who are intentionally targeted by the aid. Secondary effects are benefits which are inherent in an aid measure and which are not targeted at specific undertakings. Introduction Public funding for the […]

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1. November 2017 | State Aid Uncovered von Phedon Nicolaides

Activities Linked to State Prerogatives

State Aid Blogs - 01.11.17 State aid

Economic activities which cannot be separated from the exercise of public powers cease to be economic in nature. Introduction The dividing line between economic and non-economic activities is in a permanent state of flux. Although it is now clear that some activities fall within the powers and prerogatives of the state, while many others are carried out by the […]

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24. Oktober 2017 | State Aid Uncovered von Phedon Nicolaides

Private Creditor Test

State Aid Blogs - SAH Blog26 GBERd

The Commission must apply the private creditor test even if a Member State does not request it or believes that it is not relevant. Introduction Private investors always have two options: to invest or not to invest. They choose the option that generates the largest amount of profit or revenue. Similarly, private creditors also have two options: call in […]

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17. Oktober 2017 | State Aid Uncovered von Phedon Nicolaides

State Resources and Imputability

State Aid Blogs - 17.10. imputability stateaid

When the state acts in its capacity as legislator it is not presumed to direct the resources of undertakings it owns and over which it can exercise dominant influence as a shareholder. Introduction On 13 September 2017, the Court of Justice replied to a request from a national court to advise it on the concept of state resources [case C‑329/15, […]

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10. Oktober 2017 | State Aid Uncovered von Phedon Nicolaides

Pitfalls in the Use of De Minimis Aid

State Aid Blogs - 05.12.Imputability of Aid State aidz

Calculating de minimis aid according to the average amount of aid received by undertakings is wrong. Introduction It appears that all Member States grant de minimis aid, even though some tend to grant it more easily than others. De minimis aid can be used to subsidise any costs, including those which are not eligible under other State aid rules. The […]

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18. Oktober 2016 | State Aid Uncovered von Phedon Nicolaides

Compliance with State Aid Rules in Cohesion Policy: A Special Report of the European Court of Auditors

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Control of State aid by national authorities needs to be strengthened. Typical mistake is to grant aid after a project has started or to subsidise ineligible costs. Aid measures for risk capital, SGEI and R&D appear to be particularly prone to error. Introduction On 4 October 2016, the European Court of Auditors [ECA] published a special report 24/2016 […]

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11. Oktober 2016 | State Aid Uncovered von Phedon Nicolaides

Non-economic Activities, Absolute Impossibility to Recover Incompatible Aid and the Powers of National Courts

State Aid Blogs - SAH blog48 Montessori Lexxion

This article reviews three judgments that were all rendered on 15 September 2016. The first two concern the concept of economic activity. The third is about the rights of national courts to consider the correctness of Commission decisions. The Court of Justice has said clearly that national courts may not question Commission decisions. Economic activity The first two cases […]

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6. Oktober 2016 | State Aid Uncovered von Phedon Nicolaides

Compensation for the Extra Costs Imposed by Law

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When the state imposes obligations which create extra costs for a single undertaking, that undertaking suffers a disadvantage in relation to its competitors. The extra costs are abnormal because normal costs are those borne by all competitors. Introduction On 14 July 2016, the General Court rendered its judgment in case T 143/12, Germany v Commission.1 The outcome was a victory for […]

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27. September 2016 | State Aid Uncovered von Phedon Nicolaides

Regional Aid for a Large Project subject to Individual Notification under the GBER

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In the meaning of regional aid rules, diversification in a “new activity” is not the same as diversification in a “new product”. A “new process innovation” must be different, in the sense of being distinct from an existing process, must be substantial, in the sense that it covers the whole production process and must be new, in the sense that […]

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20. September 2016 | State Aid Uncovered von Phedon Nicolaides

Non-State Aid Assistance to Depositors and Customers of Banks

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Public assistance to borrowers who cannot repay their loans does not constitute State aid if the beneficiaries are individuals. Public assistance to undertakings which cannot repay their loans does not constitute State aid if the amount of aid does not exceed the de minimis threshold. Any public funding of deposits which are transferred from ailing to healthy banks is not […]

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13. September 2016 | State Aid Uncovered von Phedon Nicolaides

Burden-Sharing and State Aid to Banks

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Creditors must contribute to the recovery of banks before State aid is granted. Burden-sharing by creditors in the recovery of banks does not deprive them of their right to property. Introduction On 19 July 2016, the Court of Justice rendered its judgment in case C‑526/14, Tadej Kotnik and others v Državni zbor Republike Slovenije.[1] The judgment was in response to a […]

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6. September 2016 | State Aid Uncovered von Phedon Nicolaides

Commission Notice on the Notion of State Aid: Part III – Trade Effect, Distortion of Competition and Infrastructure

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This is the third and last article in a series of three that reviews the Commission’s Notice on the Notion of State Aid.* Last week’s article analysed the concepts of advantage and selectivity. This week the focus is on the last two constituent elements of the notion of State aid: affectation of cross-border trade and distortion of competition. This article […]

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30. August 2016 | State Aid Uncovered von Phedon Nicolaides

Commission Notice on the Notion of State Aid: Part II – Advantage and Selectivity

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This is the second article in a series of three that reviews the Commission’s Notice on the Notion of State Aid.* Last week’s article focused on the concepts of economic activity and state resources.** Next week’s article will conclude with a presentation of the conditions under which trade is affected and competition distorted and an analysis of the application of […]

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23. August 2016 | State Aid Uncovered von Phedon Nicolaides

Commission Notice on the Notion of State Aid: Part I – Economic Activities & State Resources

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The Notice provides a thorough review of the case law and the decisional practice of the Commission. Introduction After more than two years of deliberations, the Commission Notice on the Notion of State Aid was published in the Official Journal on 19 July 2016.[1] The Notice presents “the Commission’s understanding of Article 107(1) of the Treaty, as interpreted by the […]

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16. August 2016 | State Aid Uncovered von Phedon Nicolaides

Compliance with Regulation 651/2014: The Consequences of Failure to Publish an Aid Measure*

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Member States must publish the aid measures they adopt on the basis of the GBER. Failure to publish prevents them from being exempted from notification and renders any aid illegal. Introduction On 21 July 2016, the Court of Justice delivered a judgment in response to a request for a preliminary ruling in case C-493/14, Dilly’s Wellnesshotel v Finanzamt Linz.[1] An […]

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