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‘Prior in Tempore, Potior in Jure’ Does Not Exclude State Aid to Users of Infrastructure · Case T-108/16 Naviera Armas · Annotation  Marianne Clayton, Egill Olafsson and Maria Segura journal article

Annotation on the Judgment of the General Court of 15 March 2018 in Case T-108/16 Naviera Armas SA

Marianne Clayton, Egill Olafsson, Maria Segura

European State Aid Law Quarterly, Volume 17 (2018), Issue 2, Page 282 - 289

On 15 March 2018, the General Court annulled a Commission Decision which considered that the Spanish authorities had not granted state aid in favour of Fred Olsen through some measures relating to the port of Puerto de Las Nieves in the Canary Islands. A competitor, who had complained to the Commission about the said measures, applied for annulment of the Commission’s Decision on the grounds that the Commission should have opened the formal investigation procedure resulting from the fact that it had encountered serious difficulties. Even though the Decision had been appealed on the grounds of procedure, by its nature, the Court had to go into the substance of the case. The line between procedure and substance can be a fine one. Keywords: Opening Formal Investigation; Serious Difficulties; Use of State-Owned Infrastructure.

Ciudad de la Luz v Commission   ∙ Joined Cases T-319/12 and T-321/12 ∙ Annotation by Marinne Clayton, Maria J. Segura and Egill D. Ólafsson journal article

Annotation on the Judgment of the General Court (Seventh Chamber) of 3 July 2014 in Joined Cases T-319/12 and T-321/12 Ciudad de la Luz

Marianne Clayton, Maria J. Segura, Egill D. Ólafsson

European State Aid Law Quarterly, Volume 15 (2016), Issue 1, Page 145 - 154

By a judgment dated 3 July 2014, the General Court confirmed the Commission’s Market Economy Investor Principle (MEIP) assessment of the public investment in the film studio complex Ciudad de la Luz in which a private investor had initially participated. The investment decision was taken on the basis of two independent expert reports that assessed the viability and profitability of the project. The General Court confirmed that the MEIP does not require to achieve the maximum possible return. It also found that the private investor involved in the project should be disregarded in the MEIP assessment as it only committed to a marginal amount of the investment and as it was a “service provider” for Ciudad de la Luz. Its engagement therefore could not be assessed on the basis of the logic of “private investor.” Moreover, the Court found that it was up to the Member States to assess the content of independent reports and be critical of their findings. Consequently, the Court confirmed the Commission’s assessment of a hypothetical investor’s behaviour which demonstrated that the investment was not profitable and thus constituted State aid, which was not compatible under regional or cultural considerations. Keywords: Market Economy Investor Principle, Private Investor, Independent Expert Reports, Regional Aid Guidelines.

The Notion of State Resources: So Near and yet so Far journal article

Marianne Clayton, Maria J Segura Catalan

European State Aid Law Quarterly, Volume 14 (2015), Issue 2, Page 260 - 270

The article provides an overview of the interpretation by the European Courts of the criterion “state resources” in the definition of State aid foreseen under Article 107 TFEU and the corresponding Article 61 EEA Agreement. In 2013, the European Courts issued four judgments regarding the interpretation of the concept of state resources. Taking account of the evolution of the interpretation of this criterion in earlier case law, with a focus on the influence of landmark cases such as PreussenElektra, Stardust Marine or Pearle, the authors analyse the new judgments and show the difficulties practitioners face when applying this criterion to increasingly complex constructions. The most recent judgment of the ECJ in case C-518/13 regarding the use of bus lanes by London cabs is also mentioned. Keywords: State resources; imputability

Ministerio de Defensa, Navantia SA v Concello de Ferrol  ∙ Case C-522/13 ∙ Annotation by Marianne Clayton and Maria J. Segura journal article

Annotation on the Judgment of the Court of Justice of the EU of 9th October 2014 in Case C-522/13, Ministerio de Defensa, Navantia SA v Concello de Ferrol

Marianne Clayton, Maria Segura

European State Aid Law Quarterly, Volume 14 (2015), Issue 1, Page 178 - 184

The CJEU rendered a short, straight-forward judgment on the concept of State aid within the meaning of Article 107(1) TFEU. In a request for a preliminary ruling, the Court was asked to address whether a tax exemption may be considered compatible with the State aid rules by a national judge who had identified in a first ruling the State aid nature of the measure. An interesting aspect of this case is the use (or rather lack of use) of the Notice on the enforcement of State aid by national courts, which foresees the possibility to ask the Commission for its opinion on the compatibility of a measure as opposed to the frequent requests for preliminary rulings. Keywords: Advantage, Enforcement by national courts, Preliminary ruling procedure, Property tax, Selectivity, Shipbuilding, Tax exemption.