Michele Giannino, Federich Romby

European State Aid Law Quarterly, Volume 17 (2018), Issue 3, Page 338 - 352

The purpose of this article is to provide a comprehensive review of the European Commission’s approach in assessing whether compensation awarded to airports for the provision of Services of General Economic Interest (SGEIs) complies with the EU State aid rules. The article analyses the defensive strategies open for national authorities to claim that airports public service compensation packages are compatible with the internal market. In that regard, the article considers the Altmark doctrine and the compatibility conditions for the application of the SGEI exception in Article 106 TFEU. Then it critically compares the strong and weak points of each of these strategies and also dwells on which factors national authorities have to adduce to prove the compatibility of airport aid. Bearing in mind the difficulties for national authorities to satisfy all the conditions for the application of the Altmark doctrine, the article suggests that the SGEI exception should be the optimal strategy to obtain regulatory clearance of public service compensation to airport.

Sarah Beeston, Pim Jansen, Kiek Brink

European State Aid Law Quarterly, Volume 17 (2018), Issue 3, Page 328 - 337

The European Commission sees the ports sector as a driving force for economic growth and regional development in Europe. It has recently developed various policy initiatives in this sector and taken measures whereby State aid control forms the key element. The Commission has opted for an approach based on two interlinked pillars. First, the Commission intends to create a (more) level playing field among European Union Member States, by using State aid rules to curb tax benefits for (public) companies in the ports sector. Second, further to the State Aid Modernisation Programme, the Commission is, to an increasing extent, pursuing an active European economic policy in the ports sector by means of exemptions from the prohibition of State aid. As a result, certain aid measures targeting market failures and objectives of a common European interest are permissible. In this article we will provide an analysis of recent developments and place them in their legal and policy-related context. We will specifically discuss the impact of these developments on seaports in the Netherlands.

Nicole Robins, Hannes Geldof

European State Aid Law Quarterly, Volume 17 (2018), Issue 4, Page 494 - 508

The EU’s State aid modernisation reforms introduced a role for ex post evaluations of aid schemes. State aid evaluation provides an opportunity to continuously improve the effectiveness and efficiency of aid schemes to ensure that their positive impact outweighs possible distortions to competition and trade. Traditionally, the role for an extensive analysis of the impact of aid on competition has been limited compared with other areas of competition policy, such as merger control, and assessments of anticompetitive agreements or abuse of dominance. The European Commission therefore asked Oxera to develop an economic framework that can be used to assess the competitive effects of aid, and to gain further insights into the actual impact of aid on competition. Oxera’s study may have significant implications for future State aid control. This article discusses the economic framework developed by Oxera as well as insights from Oxera’s study into the main drivers of the likely impact of aid on competition.

María Muñoz de Juan

European State Aid Law Quarterly, Volume 17 (2018), Issue 4, Page 483 - 493

Ex post monitoring is a counterpart of the State aid decentralisation process and, as such, is a cornerstone of the current State aid control system. The application of State aid rules is being increasingly decentralised thanks to the significant use of the block exemption Regulations by the Member States. However, this does not mean that the Commission is giving up its powers and obligations under the Treaty. On the contrary, it closely follows — through ex post controls — how State aid measures are implemented by the Member States. This Commission-level monitoring exercise aims to correct the detected irregularities both for the past and for the future and helps to improve State aid rules. It has a measurable deterrent effect. Keywords: State aid; enforcement; monitoring; ex post control; SAM; decentralisation; block exemption regulation.

Barbara Brandtner, Daniele Vidoni

European State Aid Law Quarterly, Volume 17 (2018), Issue 4, Page 475 - 482

The Commission requirement concerning the evaluation of State aid schemes is one of the pillars of the State Aid Modernisation (SAM) reform of 2014. The aim of the evaluations conducted under State aid rules is to provide evidence on both the direct impact of the aid on its beneficiaries and on its indirect impacts, positive and negative, as well as on the proportionality and appropriateness of the aid measure. This article provides an account of the state of play in the evaluation of State aid schemes. To this end, we analyse the legal framework of the evaluation requirements as outlined under the General Block Exemption Regulation and under different State aid guidelines, and synthesise the characteristics of the current 45 evaluation plans, and of the Commission decisions approving them. Finally we discuss the lessons learnt from the first final evaluation reports submitted and reflect on challenges ahead. Keywords: State aid Modernisation; State aid control; Evaluation plan.

Marko Milenkovic

European State Aid Law Quarterly, Volume 17 (2018), Issue 1, Page 66 - 79

Serbia’s EU integration process has only commenced after the political change in 2000. The cornerstone of the relations between the country and the EU is the Stabilisation and Association Agreement, which mandates the full alignment of State aid measures with the EU standards. Since 2006, subsequent governments have been working on aligning the substantive rules for the granting of State aid with the (ever-changing) EU framework, with a growing number of State aid measures and schemes being notified to and approved by the Commission for State Aid Control (CSAC). However, this period was also characterised by a severe economic crisis. By examining the legal framework, institutional structure for State aid control and overall experiences of the first phase of the implementation of the Law on State aid, this paper draws conclusions on the major challenges and obstacles encountered introducing the new regulatory regime in the context of a deep economic crisis, on-going enlargement fatigue and conflicting political legacies. Keywords: Serbia; Institutional Transformation; EU Conditionality; Enlargement Fatigue.

Édouard Louis Jean-Baptiste Bruc

European State Aid Law Quarterly, Volume 17 (2018), Issue 1, Page 54 - 65

The willingness to encourage private parties to seek compensation has emphasised the necessity to push forward economic analysis regarding antitrust cases. The question concerning a passing-on defence thus entered the sphere of public enforcement of EU State aid law via a judgment which highlighted the possibility to take a passing-on defence regarding the ‘undercharge’ passed on to the consumer through the entrustment (lowering prices). However, the ECJ quashed the judgment, preferring a more deterrent approach, implicitly stressing that it can only be a‘Pyrrhic victory’ because it would require predictions as regards the behaviour of the benefiting undertaking and its results. In the author’s view, this rollover is an opportunity to underline the difference between public and private enforcement aims, and to understand the role of private enforcement under State aid law which in fact requires a passing-on analysis. Keywords: Passing-on, Private Enforcement; Unlawful State aid; Recovery.

George Peretz QC

European State Aid Law Quarterly, Volume 17 (2018), Issue 1, Page 80 - 84

Birgit Haslinger, Elisabeth Hoffberger-Pippan

European State Aid Law Quarterly, Volume 17 (2018), Issue 1, Page 115 - 119

Phedon Nicolaides

European State Aid Law Quarterly, Volume 17 (2018), Issue 3, Page 368 - 374

The amount of State aid in a loan or guarantee is not necessarily equal to the principal of the loan or the guaranteed amount. Moreover, the liability of the State and the risk borne by the State depend on the rights or collateral that the State secures before it grants a loan or guarantee. For this reason, State aid law needs a third concept to describe the behaviour of the State apart from that of ‘public authority’ or ‘private investor’. That third concept is labelled here as ‘ex-ante creditor’. It applies to those sums over which the State can exercise a claim without expecting ex-ante to receive a profit. Past loans or guarantees that contain State aid should be ignored, as prescribed by the Court of Justice, only when the State has no prospect of recovering any amount that is due to it or when it has no claim to exercise against the borrower who is the aid recipient. Keywords: Private investor; Private creditor; Loans; Guarantees; Past State aid.