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

24. Januar 2023 | State Aid Uncovered von Phedon Nicolaides

State Resources Include all the Resources that Can be Directed by the State for its own Purposes

State Aid Blogs - State Aid Uncovered SM posts 40

State Aid Blogs - State Aid Uncovered SM posts 40

Introduction On 12 January 2023, the Court of Justice delivered its judgment in joined cases C-702/20, DOBELES HES and C-17/21, Sabiedrisko pakalpojumu regulēšanas komisija.[1] A Latvian court requested the Court of Justice to provide a preliminary ruling on the interpretation of Article 107(1) TFEU, Article 108(3) TFEU, Regulation 1407/2013 on de minimis aid and of the procedural Regulation 2015/1589. The […]

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17. Januar 2023 | State Aid Uncovered von Phedon Nicolaides

The Private Acquirer Test: An Illuminating and also Puzzling Judgment

State Aid Blogs - State Aid Uncovered SM posts 22

State Aid Blogs - State Aid Uncovered SM posts 22

A public authority may act as a market operator and acquire services through a private third party without conferring an advantage to the provider of those services. Introduction When a public authority buys a service and pays the market price it does not confer an advantage to the seller in the meaning of Article 107(1) TFEU. Even if it pursues […]

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10. Januar 2023 | State Aid Uncovered von Phedon Nicolaides

The Value of Land

State Aid Blogs - State Aid Uncovered SM posts 19

State Aid Blogs - State Aid Uncovered SM posts 19

Different valuation methods do not confer a selective advantage if they generate similar results. Introduction Land or immovable property has no intrinsic value. Its value depends on how the land or property is used. In turn, how it is used is determined by several factors such as its location, and the applicable zoning rules. A plot of land in an […]

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3. Januar 2023 | State Aid Uncovered von Phedon Nicolaides

The Link between State Aid and Environmental Provisions of EU Law

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State Aid Blogs - State Aid Uncovered SM posts 17

Introduction It is an established principle in the case law that the Commission may not authorise State aid that infringes other provisions of EU law, both primary and secondary. Now consider the following case. A Member State notifies to the Commission regional investment aid to support the construction of a mega factory. The factory will produce its own energy and […]

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28. Dezember 2022 | State Aid Uncovered von Phedon Nicolaides

The Consequences of not Knowing when State Aid is State Aid

State Aid Blogs - State Aid Uncovered SM posts 15

State Aid Blogs - State Aid Uncovered SM posts 15

Introduction Public officials, legal advisors and academics are sometimes frustrated by the practice of the Commission of declaring a public measure as being compatible with the internal market without first taking a firm position on whether that measure constitutes State aid. The Commission would say something like “it is not certain whether the aided activity is economic in nature” or […]

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20. Dezember 2022 | von Phedon Nicolaides

Compensation for Damage

State Aid Blogs - State Aid Uncovered SM posts 2

State Aid Blogs - State Aid Uncovered SM posts 2

Introduction On 9 November 2022, the General Court followed its previous judgments in cases concerning compensation for damage caused by the covid-19 pandemic to rule, in case T-111/21, Ryanair v European Commission, that Member States were free to choose to whom to grant State aid.[1] Ryanair had sought the annulment of Commission decision SA.55373 concerning damage compensation to Croatia Airlines […]

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13. Dezember 2022 | State Aid Uncovered von Phedon Nicolaides

State Guarantees for Undertakings in Difficulty

State Aid Blogs - State Aid Uncovered SM posts 12

State Aid Blogs - State Aid Uncovered SM posts 12

In order to detect State aid in a state guarantee, it is necessary to carry out a search to identify the market rate, if it exists. There is no general presumption that an undertaking in difficulty cannot obtain a guarantee from the market. It is necessary to consider the risk of default. The calculation of the amount of aid must […]

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6. Dezember 2022 | State Aid Uncovered von Phedon Nicolaides

Compliance with State Aid Guidelines

State Aid Blogs - State Aid Uncovered SM posts 10

State Aid Blogs - State Aid Uncovered SM posts 10

For aid to be declared compatible with the internal market, all of the formal and substantive provisions of the relevant guidelines must be satisfied. State aid is granted the moment the right to a selective advantage is conferred, even if the actual benefit materialises at a future point in time. Introduction On 26 October 2022, the General Court reiterated, in […]

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22. November 2022 | State Aid Uncovered von Phedon Nicolaides

The “Arm’s Length Principle” and the Taxation of Transactions between Related Companies

State Aid Blogs - State Aid Uncovered SM posts 8

State Aid Blogs - State Aid Uncovered SM posts 8

The arm’s length principle is not an autonomous principle that can be applied to any advance tax ruling. It must be provided in the national tax system. Furthermore, the arm’s length principle must be applied, if it exists in the national tax system, in the form that is defined by that tax system. Introduction In a series of decisions beginning […]

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29. November 2022 | von Phedon Nicolaides

What Costs Must be Included in Compensation for Public Service Obligations?

State Aid Blogs - State Aid Uncovered SM posts

State Aid Blogs - State Aid Uncovered SM posts

Introduction The two most difficult issues in imposing a public service obligation on a providers of a service of general economic interest is, first, the correct definition of the obligation and, second, the correct calculation of the amount of compensation that covers only the net extra cost of the service. The correct definition must take into account what the market […]

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15. November 2022 | State Aid Uncovered von Phedon Nicolaides

No Effect on Trade

State Aid Blogs - State Aid Uncovered SM posts 6

State Aid Blogs - State Aid Uncovered SM posts 6

A public measure of purely local character and which does not induce cross-border movement of investors or clients is unlikely to affect trade between Member States. Introduction It is rare to find a judgment that confirms that a particular public measure is not liable to affect trade between Member States. The General Court did so in its judgment of 19 […]

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8. November 2022 | State Aid Uncovered von Phedon Nicolaides

Natural Disasters and State Aid

State Aid Blogs - State Aid Uncovered SM posts 4

State Aid Blogs - State Aid Uncovered SM posts 4

Compensation for damage suffered by undertakings as a result of a natural disaster constitutes State aid. The compensation is compatible with the internal market only if, first, there is a causal relationship between the natural disaster and the damage and, second, the amount of compensation does not exceed the amount of the damage. Introduction Financial assistance in the form of […]

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1. November 2022 | State Aid Uncovered von Phedon Nicolaides

Research Organisations, their Primary Objectives and their Shareholders

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State Aid Blogs - State Aid Uncovered SM posts 38

A research organisation is not required to reinvest any revenue it may generate into its non-economic activities. The fact that the shareholders of a research entity are profit seeking has no decisive impact on its classification as a research organisation. Introduction As governments push universities to engage in more collaborative research with industry, the question increasingly arises where to draw […]

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25. Oktober 2022 | State Aid Uncovered von Phedon Nicolaides

State Aid in Contracts to Provide Services

State Aid Blogs - Guest posts

State Aid Blogs - Guest posts

The continuation of beneficial arrangements after the expiry of a service contract constitutes State aid. The practice of not charging for the use of public assets constitutes State aid. Introduction On 7 September 2022, the General Court ruled, in case T-642/19, JCDecaux v European Commission, that the free use of public infrastructure for profit confers and advantage in the meaning […]

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27. September 2022 | State Aid Uncovered von Phedon Nicolaides

Compliance with Public Service Obligations Does Not Necessarily Entitle the Providers of Public Services to Compensation

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In the field of bus or rail transportation, Member States may impose either public service obligations through a contract or regulate prices through general rules. Providers of transport services are entitled to compensation only if they are financially worse off as a result of compliance with public service obligations. Introduction It is now a well-established principle in the case law […]

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20. September 2022 | State Aid Uncovered von Phedon Nicolaides

An Innovative Scheme to Support Individual Borrowers

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Individuals and households are not undertakings. However, any public funding of individuals or households may constitute indirect aid to undertakings. Such aid may be exempted on the basis of Article 107(2)(a) TFEU. Introduction Article 107(1) TFEU applies to indirect State aid as well as to direct aid. Since all State aid has both primary effects [i.e. the benefits that go […]

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13. September 2022 | State Aid Uncovered von Phedon Nicolaides

State Aid for External Transport Costs

State Aid Blogs - State Aid Uncovered SM posts 1

State aid may be granted to reduce the difference in “external” costs caused by different modes of transport. Introduction Member States have used money from the Recovery and Resilience Fund [RRF] to support the development of less polluting and more energy efficient activities and technologies. A case in point is Spain’s scheme that incentivises the transfer of freight traffic from […]

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6. September 2022 | State Aid Uncovered von Phedon Nicolaides

Special Economic Zones

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Member States must check that the State aid claimed by undertakings established in special economic zones concern activities that are actually carried out within those zones. Introduction Several Member States have special economic zones in which companies enjoy preferential tax treatment. These zones can be divided into two categories: those that can be found mostly in the new Member States […]

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30. August 2022 | State Aid Uncovered von Phedon Nicolaides

Support for Research & Innovation in the Context of the Temporary Framework

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Introduction The Temporary Framework [TF] that was introduced in March 2020 expired on 30 June 2022. However, two provisions of the TF remain in force until 31 December 2022. They are investment support for sustainable recovery [section 3.13 of the TF] and solvency support [section 3.14 of the TF]. In the former case, individual aid must be granted before 1 […]

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23. August 2022 | State Aid Uncovered von Phedon Nicolaides

Compensation for the Net Cost of Public Service Obligations (Part II)

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Public service obligations must be imposed through an act of entrustment that defines clearly the terms of the service and the duration of the obligation. The “reasonable profit” in the public service compensation should reflect the risk borne by the provider. Introduction In 2009, the Commission received several complaints concerning State aid that Italy had granted to the various shipping […]

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