Andrés Martin-Ehlers, Niels Frank

European State Aid Law Quarterly, Volume 19 (2020), Issue 4, Page 464 - 467

Catherine Banet

European State Aid Law Quarterly, Volume 19 (2020), Issue 2, Page 172 - 184

Looking at the practical case of the Guidelines on State aid for environmental protection and energy (EEAG) (2014-2020) and implementation of them, this article intends to re-open the debate on the legal status of soft law instruments in EU State aid policy. It analyses the recent case law of the Court of Justice of the European Union and the manner the latter distinguishes between the legal force and the legal effects of the State aid guidelines, not only on the Commission, but also on third parties like Member States. The article puts in perspective the careful approach of the Court in not recognising the possible indirect effects of the guidelines on Member States or individuals with the procedural and structural changes in the adoption of the guidelines. With the implementation of the State Aid Modernisation, a circular process in three steps has been established between the adoption of the General Block Exemption Regulation (GBER), the new State aid guidelines and the proposals for new secondary legislation. In this process, the guidelines assume the function of a bridge, building on the binding principles enshrined in the GBER and preparing the revision of sectoral EU directives and regulations. With the upcoming revision of the GBER and the EEAG which is now scheduled for adoption in 2021, the same dynamic will most probably apply. The revision of the GBER and the EEAG will need to reflect the content of the newly adopted Clean Energy Package for All Europeans, but will also play a crucial role in preparing the grounds for amending relevant secondary legislation in line with the Commission’s European Green Deal Strategy. Keywords: EEAG 2014-2020, renewable energy, support schemes, GBER, legal force, legal effects

Alessandra Fratini

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 372 - 376

On 10 April 2019, the General Court handed down yet another judgment in the long-lasting Deutsche Post saga, this time addressing the challenges brought against the Commission Decision extending the formal investigation procedure with regard to the pension subsidies granted to Deutsche Post for the employees with civil servant status. While it may not be the end of the story, the judgment provides interesting insights on the binding legal effects of a Decision to extend an ongoing formal investigation, for the purposes of it constituting an act open to challenge under Article 263 TFEU. It also sheds light on the Commission’s obligation to state reasons concerning the existence of a selective economic advantage, pursuant to Article 107(1) TFEU, when the beneficiary is in a situation which cannot be compared with the one of its competitors due to the peculiar legal regime that is applicable to it. Keywords: Challengeable act; Independent effects of the Decision extending a formal investigation; Interest in bringing an action; Advantage; Duty to state reasons; Incomparable position of the beneficiary.

Edwin Schotanus

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 359 - 365

Under the Case law of the Court of Justice (CJ), aid measures are very quickly considered to affect competition and trade between Member States (inter-State trade). Nonetheless, in certain clear, specific situations, this will not seem to be the case. The European Commission is constantly seeking ways to dispose of such issues fast, in order to focus on more harmful types of State aid. This pragmatic approach by the Commission is at odds with the CJ’s principled application of the criteria ‘effect on competition’ and ‘effect on inter‑State trade’, and may sometimes result in inconsistent Decisions. Legal certainty would be furthered by a CJ ruling about the Commission’s pragmatic approach. Keywords: effect on inter-State trade; effect on competition; appreciability; State aid.

Lina Barauskaitė

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 352 - 358

On 15 May 2019, the Court of Justice of the European Union (the CJEU or the Court) rendered a landmark state aid preliminary ruling where it assessed the Lithuanian public interest services (PIS) support measure provided to certain Lithuanian electricity producers. The measure was never notified to the European Commission and was subject to number of court disputes at the national level. The ruling confirms that the PIS support in the electricity sector constitutes State aid. In particular, the Court confirms that PIS funds can be regarded as State resources, since their life cycle (collection, administration and distribution) are strictly regulated and remains under the control of the Lithuanian State. PIS funds are also intended to finance certain services in the electricity sector, constituting a selective advantage. Moreover, due to characteristics of the Lithuanian electricity market, such as existing interconnectors and European Union electricity market liberalisation, PIS scheme is also liable to affect trade between the Member States and distort competition. Finally, the Court also expressed its doubts whether PIS should be defined as service of general economic interest (SGEI). According to the Court, the requirements for SGEI existence are not met. Keywords: Energy; Electricity; State resources; Imputability; Effect on trade; Distortion of competition; SGEI.

Hans Arno Petzold

European State Aid Law Quarterly, Volume 17 (2018), Issue 2, Page 250 - 258

EU State aid law does frequently refer to the term ‘local’: firstly in Article 107(1) of the Treaty on the Functioning of the European Union (TFEU) when asking whether trade between Member States is affected, in the sense of a cross-border effect of the respective measure, secondly in the General Block Exemption Regulation (GBER) as from 1 July 2014, which exempts certain ‘local’ aids, falling under Article 107(1) TFEU, from prior notification. In this essay the attempt is made, by analysing Commission decisions and the GBER, to come to a definition of the term ‘local’ suitable for use in day-to-day funding practice. Keywords: Effects on Trade; Local Character; Article 107(1) TFEU; GBER.

Bernadette Zelger

European State Aid Law Quarterly, Volume 17 (2018), Issue 1, Page 28 - 42

This piece focuses on the second aspect of the fourth criterion for a measure to qualify as aid pursuant to Article 107(1) TFEU, namely whether a respective measure has an effect on trade between Member States or rather qualifies as purely local in nature. It will be demonstrated that the Commission’s existing guidance on the effect on trade criterion in its Notion of Aid Notice and its package of recent Commission decisions provide two main criteria which have to be considered when assessing whether or not a measure is local. Therefore, these packages, along with further guidance of the Commission on the effect on trade criterion in its Notion of Aid Notice, do provide a framework for identifying local measures, however, the framework provided does not pursue a ‘safe harbour’ approach like, for example, the Commission’s General Block Exemption Regulation or the De Minimis Regulation. This article provides a critical analysis of the existing legal framework and the Commission’s guidance in this respect, and concludes by suggesting a novel policy approach. Keywords: Effect on Trade; Competition; Distortion; Notion of Aid.

Cees Dekker

European State Aid Law Quarterly, Volume 16 (2017), Issue 2, Page 154 - 163

On 29 April 2015, the European Commission decided on several notified measures, ruling that in none of those cases State aid was involved because, as the accompanying press release stated, they were unlikely to have a significant effect on trade between Member States. According to the press release, the decisions give additional guidance on how to determine which cases should be assessed by the Commission and which should not, to allow the Commission to focus on cases with a larger impact on the internal market. A couple of decisions in 2016 followed the same line of reasoning. This article discusses the question of how these decisions relate to the Court’s case law and the Commission’s own practice regarding the criterion ‘effect on trade between Member States’ laid down in Article 107(1) TFEU. It will also explore to what extent these decisions give actual clarity on the application of this criterion and if there is a better alternative to reduce the workload of the national authorities and the Commission. Keywords: Interstate Trade; De Minimis; Appreciable Effect; Notice on the Notion of State Aid.