Julie Leroy

European State Aid Law Quarterly, Volume 20 (2021), Issue 3, Page 325 - 336

This article, like my PhD thesis on which it is based, focuses on the recovery of unlawful fiscal State aid in Belgium. Currently, Belgium has no general legal framework for recovery procedures: neither for non-fiscal, nor for fiscal State aid. To the contrary, for the recovery of fiscal State aid, ad hoc-legislation was adopted in the past. On the one hand, the research evaluates if there is a need for a new legal framework for the recovery of unlawful fiscal State aid in Belgium, in the execution of a recovery decision from the European Commission. In order to make this evaluation, the existing ‘tax law route’ and ‘civil law route’ for fiscal recovery procedures are charted. Those routes are tested against ten evaluation criteria, which are deducted from EU law and national law. This evaluation clearly shows that there is a need for a new legal framework for the recovery of unlawful fiscal State aid in Belgium. Consequently, on the other hand, this research makes recommendations regarding the content and design of the new proposed framework. It is, amongst others, recommended to adopt general legislation that applies to all future fiscal recovery procedures in Belgium. Despite its focus on Belgium, several aspects of the research are also interesting for other EU Member States. Keywords: EStAL PhD Award; PhD research; recovery of unlawful (fiscal) State aid; Belgium; current framework; recommendations for new framework.

Caroline Buts, Péter Staviczky

European State Aid Law Quarterly, Volume 20 (2021), Issue 4, Page 546 - 559

Eesti Pagar constitutes a milestone in State aid law. This article provides an overview of the judgment and discusses, in chronological order, the topics of the five questions dealt with by the Court. First, we review the importance of the criterium incentive effect and more specifically the timing of the aid application in relation to the start of the project. Second, we analyse the obligation of a national authority to recover unlawful aid, also in the absence of a Commission decision. Third, we investigate whether actions by national authorities (in breach of EU law) can cause legitimate expectations for an aid beneficiary. Fourth, regarding recovery procedures without a Commission decision, we reflect on the pertinent limitation period. Finally, we examine the applicable recovery interest rate. Keywords: incentive effect; complaints; recovery; (recovery) interest rate/reference rate; limitation period, GBER, illegal aid, obligation of national granting entities 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).

Irene Moreno-Tapia, Victoria Rivas Santiago

European State Aid Law Quarterly, Volume 19 (2020), Issue 2, Page 220 - 224

Almost a century after the construction of the German racing circuit Nürburgring, economic problems obliged the Land of Rhineland-Palatinate to finance a luxury complex around the race track with the purpose to save the park in economics terms. However, after having received a complaint, the European Commission started an investigation procedure which ended with a Decision on the State aid implemented by Germany for Nürburgring. In the meantime, the Nürburgring assets were sold through a tender process managed by the German Government under the rules agreed with the European Commission and the administrators of the assets. The Commission Decision determined that the measures in favour of the owners of Nürburgring were unlawful and incompatible with the European market rules; in addition, the European Commission decided, first, that any potential recovery of the aid would not concern the buyer of the assets; and, second, that the sale of the assets in the framework of an open, transparent and non-discriminatory tender process did not constitute State aid. The General Court upheld the Decision. Both judgments, T-353/15 and T-373/15 are currently appealed by both complainants before the Court of Justice.

Sami Hartikainen

European State Aid Law Quarterly, Volume 19 (2020), Issue 3, Page 359 - 364

Economic continuity is not a new topic in State aid recovery cases. However, a final satisfactory solution has yet to be established. The significance of the purchase price in asset deals especially remains unclear. The General Court’s judgment would seem to suggest that the question of as to whether an asset deal is made as ‘a going concern’ might be a more decisive factor than the price. While the case remains under appeal before the Court of Justice, taking a closer look at the details of the case is already warranted.

Stefania Bello, Germano Guglielmi

European State Aid Law Quarterly, Volume 19 (2020), Issue 4, Page 440 - 451

The provisions on State aid laid down by the TFEU aim at preventing that public intervention in the economy could affect trade and distort competition to an extent contrary to the common interest. To this end, the Commission may order Member States to recover State aid granted in breach of EU law. This article focuses in particular on the specific case of aid recovery from insolvent beneficiaries. The Commission has always taken a very rigorous approach on this matter, requiring the winding-up of the beneficiary and the exit from the market where it is not able to reimburse the total amount of the recovery, regardless of the circumstances of the case. The Recovery Notice adopted in 2019 confirmed the rigid position taken by the Commission towards insolvent beneficiaries. The main purposes of this article are, firstly, to assess the approach adopted by the Commission and, secondly, to investigate the existence of the possibility for the Member State to behave as a private creditor in recovering the unlawful aid, or to suspend the recovery procedure in order to examine a plan to relaunch the activities of the insolvent beneficiary. Keywords: Recovery Notice; unlawful aid; State aid recovery; insolvent beneficiaries

Sara Gobbato

European State Aid Law Quarterly, Volume 19 (2020), Issue 4, Page 528 - 530

Sandra Caussanel

European State Aid Law Quarterly, Volume 19 (2020), Issue 4, Page 522 - 524

Alessandra Franchi

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 391 - 397

This judgment continues the ‘saga’ related to the litigation between Fallimento Traghetti del Mediterraneo and the Italian State concerning the unlawful State aid granted to Tirrenia di Navigazione SpA as compensation for public service obligations from 1976 to 1980 and shows the complexity of the assessments by national courts on damages related to the granting of unlawful State aid. The CJ provides guidance on the notion of existing aid, clarifying that State aid measures which were granted in a period when the maritime cabotage market was not yet liberalized at Union level cannot be classified as existing aid because of the merely formal absence of liberalisation of that market, to the extent that those subsidies were liable to affect trade between Member States and distorted or threatened to distort competition. The CJ also emphasises the cooperation obligation of the national courts and their role in awarding damages related to the distortion of competition created by unlawful State aid. Member State cannot invoke the principle of legitimate expectation in case of breach of the notification obligation set in Article 108 (3) TFEU. Finally, the CJ clarifies that the ten-year limitation period set out in Article 15, paragraph 1, of Regulation 659/1999 (repealed by Regulation 2015/1589), only applies to Commission investigation under Article 108, paragraph 3, TFEU and only refers to the Commission’s power and time limit for recovery of illegal aid, but does not apply in damages proceedings before the national jurisdictions. Keywords: Existing aid; Recovery; National enforcement; Prescription; Damages.

Simone Donzelli

European State Aid Law Quarterly, Volume 18 (2019), Issue 4, Page 528 - 539

In July 2019, following a public consultation, the European Commission adopted a new notice on the recovery of unlawful and incompatible aid, replacing the previous 2007 Notice. The new Recovery Notice represents the state of the art of the existing legislation and Case law about recovery policy. This article introduces the key topics of the Recovery Notice, from the general principles to infringement proceedings, passing through some crucial issues such as the identification of the beneficiaries, the quantification of the aid and recovery in the context of insolvency proceedings. Selected comments from the public consultation are also presented, analysed and discussed. The article, in line with the Recovery Notice, stresses the central role of cooperation between the Commission and the Member States to implement recovery Decisions and concludes that the Recovery Notice is a comprehensive tool to enforce State aid rules in line with the current regulatory framework and Case law of the Union Courts. Keywords: Recovery; Unlawful aid; Incompatible aid; Infringement; Insolvency.

Federica Maldari

European State Aid Law Quarterly, Volume 18 (2019), Issue 4, Page 567 - 570

The Case deals with a legal dispute concerning the recovery of unlawful State aid in the fruit and vegetable sector under a Decision of the European Commission (EC), between Copebi SCA, one of the beneficiaries of the involved funds, and the French Republic. The dispute concerns the scope of the Decision of the EC, in so far as Copebi considered that the funds used were not covered by the Decision, which did not specifically mention the economic committee which paid them to Copebi. The beneficiary also argued the measure could not be covered by the Decision, since the financing mechanism of the funds was different from that described in it. The issues were referred to the Court of Justice (CJ) for a preliminary ruling, which concluded that the Decision must be interpreted as covering the funds paid to Copebi despite the fact that it didn’t mention the grantor of funds nor exact financing mechanism. Keywords: Recovery order; Contingency plans; Scope of Decision; Identification; Financing mechanism.