Leigh Hancher

European State Aid Law Quarterly, Volume 21 (2022), Issue 1, Page 72 - 86

In Case T-793/14 Tempus UK, the General Court (GC) had concluded that the EC should have opened the formal procedure provided for in Article 108(2) TFEU into a complex UK measure on a capacity mechanism remuneration (the UK CRM), on the grounds that the assessment of the compatibility of the measure notified with the internal market gave rise to doubts within the meaning of Article 4 of Regulation No 659/1999. The GC considered inter alia that the observations from third parties, the length of the pre-notification procedure (18 months), and the complexity and novelty of the measure indicated that the Commission should have had doubts about the compatibility of the measure with the internal market. The ECJ subsequently overturned this GC. In the following Tempus Poland case, the GC applied the ECJ’s approach. One of the most interesting features of the Tempus cases is the role of the pre-notification period and its impact, if any, on third party or ‘interested party’ rights in the further stages of the procedures. It is this feature of the Tempus cases that will be a primary focus of this article. Keywords: GC; Tempus; Milestones; pre-notification; interested party Milestones Preview: this article is based on a chapter in the upcoming second edition of the book 'Milestones in State Aid Case Law' (Lexxion 2022).

Leigh Hancher

European State Aid Law Quarterly, Volume 20 (2021), Issue 3, Page 319 - 324

Leigh Hancher, Antonios Bouchagiar

European State Aid Law Quarterly, Volume 20 (2021), Issue 4, Page 529 - 545

The judgment of the Court of Justice in the Hinkley case provides food for thought on several fundamental questions of EU State aid law. The present article discusses two of them. First, the authors analyse the role (if any) of objectives of common interest in the assessment of compatibility of aid under Article 107(3)(c) TFEU, as well as the manner in which the Commission should balance the positive against the negative effects of such aid. Second, the authors explore how strong the link of relevance should be between an aid measure and an alleged breach of other EU law (outside the field of State aid) for such a breach to affect the compatibility assessment of the aid. The authors analyse whether the Hinkley judgment has lowered the threshold for finding such a link in comparison to the previous case-law requiring an 'indissoluble link', which could have significant institutional implications. Keywords: Hinkley; objective of common interest; indissoluble link; energy Milestones Preview: this article is based on a chapter of the upcoming second edition of the book 'Milestones in State Aid Case Law' (Lexxion 2022).

Leigh Hancher

European State Aid Law Quarterly, Volume 18 (2019), Issue 4, Page 470 - 488

Until relatively recently, only a handful of State aid cases raised the question of who should discharge the burden of proof. In the past twelve months the issue has begun to surface more regularly. This article examines the role of presumptions in understanding how the burden of proof is allocated in State aid cases before the European courts. Presumptions are a well-established tool in EU competition law. In theory it is for the party alleging that a State aid has been granted — usually the Commission — to show that the State measure confers a selective advantage on the beneficiary. Depending on what ‘hat’ the Member State is wearing when it confers a benefit, the evidentiary burden may shift back to itself to rebut a presumption as to how it has or intends to intervene. This contribution examines the role of presumptions and the allocation of the burden of proof depending on whether the State claims that it acts as a market investor, whether it exercises a public prerogative or whether it arranges the provision of services of general economic interest. Finally, the article briefly considers the burden of proof on third parties, especially in cases where the state authorities have not actively engaged in the rebuttal of a presumption by the Commission.

Leigh Hancher

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 223 - 225

Leigh Hancher

European State Aid Law Quarterly, Volume 16 (2017), Issue 1, Page 1 - 2

Leigh Hancher

European State Aid Law Quarterly, Volume 9 (2010), Issue 2, Page 18

I. Introduction This article examines two recent decisions adopted by the Commission against Poland and Hungary, condemning power purchase agreements (PPAs) as State aid within the meaning of Article 87(1) EC (now Article 107 TFEU). It will begin with a short overview of the competition concerns raised by long contracts, and will then briefly consider existing precedent. The two recent decisions are then analysed in greater detail. II. Recent Dev

Leigh Hancher

European State Aid Law Quarterly, Volume 4 (2005), Issue 3, Page 2

The upcoming decision of the U.S. Supreme Court in Cuno v. DaimlerChrysler is an excellent window through which to view tax subsidies provided by State and local governments in the United States and to contrast them to State aid in the European Union. The Cuno case, which has thrown the local public finance and business communities in the United States into an uproar, has called into question the widespread use by subnational governments of tax incentives

Leigh Hancher

European State Aid Law Quarterly, Volume 4 (2005), Issue 3, Page 7

Leigh Hancher

European State Aid Law Quarterly, Volume 2 (2003), Issue 3, Page 9