Jakub Kociubiński

European State Aid Law Quarterly, Volume 23 (2024), Issue 1, Page 69 - 74

The annotated case concerns an unsuccessful attempt to challenge the Annex to the guidelines, comprising a catalogue of industries eligible for receiving State aid due to the risk of carbon leakage. The appellants’ operations were not included in this list. In its judgment, the Court ruled on the two main pleas: inadequate statement of reasons and error in not considering the applicants as interested parties in a situation where, although no individual Commission’s decision has been issued based on the guidelines yet, the fact of not being included in the Annex prevents them from receiving State aid. The commentary delves into the appellants’ line of reasoning, explaining the attempt to ‘force-fit’ arguments concerning the infringement of law into an issue that falls within the realm of policy. Moreover, the analysis assesses a potential opening left by the Court: challenging individual decisions that authorise aid for other undertakings, evaluating its viability in the context of the most recent developments in case law.

Jakub Kociubiński

European State Aid Law Quarterly, Volume 22 (2023), Issue 1, Page 4 - 16

Even though the economic situation remains precarious, the Covid-19 economic shock has subsided enough to allow us to take stock of the European Union (EU) responses to the pandemic and appraise them in the context of emerging trends. The author argues that there are early precursors of such trends – referred to as the ‘Three Poisons’ – observable in interpretive and legislative approaches to Member States’ aid measures. These are: the easier justification of extended lifelines without adequately recognising the need for adaptation to new market conditions, and moral hazard associated with subsidy dependence; the blurring of lines between what is theoretically rational and what is obtainable under crisis market conditions thereby distorting the results of the Market Economy Operator Test; the increasing reliance on ad hoc frameworks, and highly situation-specific interpretations potentially eroding the pre-existing acquis. In this context, the purpose of this article is to identify post-Covid trends which negatively affect or might affect the long-term effectiveness of the EU State aid control system. Based on this, to assess whether these ‘poisons’ can and should be opposed. This analysis will conclude with de lege lata and de lege ferenda recommendations. Keywords: COVID-19; market economy operator test; MEOP; moral hazard; ad hoc regulation; common assessment criteria

Jakub Kociubiński

European State Aid Law Quarterly, Volume 19 (2020), Issue 2, Page 199 - 204

The subsidy scheme for certain transport undertakings in Île-de-France has been found by the European Commission to be unlawful State aid but ultimately compatible with the Internal Market. Yet, breach of the obligation to notify, declared in the Commission's decision, have resulted in its repeal by national courts and with subsequent adoption of a recovery order of previously received subsidies. Which in turn has led to (unsuccessful) action for the annulment of the Commission's decision in an attempt to eliminate the original legal basis for recovery. The following issues were raised: grounds for classifying a measure as new aid; extent of the obligation to state reasons; the fulfilment of selectivity and advantage criteria.

Jakub Kociubiński

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 366 - 371

The Case T-747/17 Union des Ports de France (UPF), an annulment action brought against the European Commission (EC, the Commission) Decision declaring the tax exemption in favour of French ports constitutes a State aid within the meaning of Article 107(1) TFEU, deserves attention primarily for the Court’s view of the differentiation between beneficiaries’ economic and non-economic activities according to which there is no threshold of non-economic activities carried out by one entity required to categorize it as entirely non-economic. The Case also involves distinguishing between individual aid and aid scheme; an assessment of the effect on competition and trade between Member States and the application of principles of proportionality and sound administration. The admissibility hinges on whether the EC Decision addressed to France could be of ‘direct and individual’ concern to a professional association – UPF. Keywords: Taxation, Economic Activity, Non-Economic Activity, State Prerogatives

Jakub Kociubiński

European State Aid Law Quarterly, Volume 17 (2018), Issue 1, Page 43 - 53

The Market Economy Investor Principle (MEIP) is used to determine whether State intervention is an economically rational investment, carried out under normal market conditions, or whether it constitutes State aid within the meaning of Article 107(1) TFEU. It consists of testing whether a hypothetical, rational private investor would have used its resources in the same manner as the State did. The author is of the opinion that this principle is deficient in assessing large infrastructural projects, and therefore would like to propose its revision. The argument runs that these projects have unique features, making any investment comparison, not only theoretical but also unrealistic and fictitious. Keywords: MEIP; Comparability; Large Infrastructure Projects; Investment Aid.