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State Aid Assessment of Complex Settlement Agreements: journal article

The European Commission’s Opening Decision in the German Lignite Phase-Out Case

Christian Koenig, Carlos Deniz Cesarano

European State Aid Law Quarterly, Volume 20 (2021), Issue 4, Page 560 - 571

The European Green Deal envisages a clean and decarbonised energy sector with net-zero greenhouse gas emissions by 2050. These ambitious objectives entrust the Member States with enormous tasks in connection with the transformation process, which must always be designed in a proportionate manner. For this purpose, compensation measures are regularly part of decarbonisation strategies. In the context of the German lignite phase-out, new legal challenges arise due to State aid law. In particular, the present case poses the question of how elements of settlement agreements are to be assessed under State aid law. This field currently seems to be almost unexplored, as the Commission’s notice on the notion of State aid only refers to settlement agreements in connection with tax law. However, settlement agreements contain some important elements that should be properly taken into account by the Commission in its State aid assessment. The fact that settlement agreements serve to avoid legal and factual uncertainties, especially in the context of highly complex decarbonisation strategies, must play a decisive role in an all-embracing economic analysis.

Re-Communalisation: The Impact of the In-House Privilege and National Public Pricing Law on European State Aid Law journal article

Christian Koenig, Beatrice Wilden

European State Aid Law Quarterly, Volume 17 (2018), Issue 2, Page 264 - 273

The re-communalisation of public services is an attractive opportunity for public authorities to fund and offset loss-making public undertakings within a municipal ‘Querverbund’. On the other hand, it gives rise to conflicts with European State aid law that have often been neglected. This article aims to illustrate potential legal pitfalls in this context by reference to a case study, taking up an example of re-communalisation in the water management sector. Focussing on the existence of an advantage, it is discussed whether municipal authorities are entitled to rely on the in-house privilege under public procurement law in order to exempt themselves from the obligation to carry out transactions in line with normal market conditions. Closer attention is paid to the relevance of national public pricing law in and its impact on the notion of advantage under European State aid law: The article claims that the pricing of public contracts pursuant to national public pricing law on a cost-price basis is not an appropriate method to establish a transaction´s compliance with market conditions.

Criminal Liability – An Efficient Tool of EU State Aid Law Enforcement? journal article

Christian Koenig, Julien Lindner

European State Aid Law Quarterly, Volume 14 (2015), Issue 1, Page 19 - 24

More than two years after the Commission set out the State Aid Modernisation (SAM) package, still no considerable progress has been achieved in terms of increasing the efficiency of EU State aid law enforcement at the national level in spite of severe deficiencies. Attention must therefore be given to the question of how to enhance the Member States’ compliance with EU State aid rules. This article proposes criminal liability as an efficient tool of EU State aid law enforcement. First, current deficiencies of EU State aid law enforcement are illustrated. Second, it is examined whether the granting of unlawful State aid potentially fulfils the elements of a crime, namely the crime of embezzlement of public funds, exemplified by German criminal law. Finally, some proposals for further improvements concerning the practical implementation of the criminal law approach are presented. Keywords: Criminal liability, Embezzlement, Enforcement, GBER, Procedure before the Commission, SAM.

Grid Fee Exemption under German Energy Law for Large-Scale Energy Consumers – A State Aid Déjà Vu? journal article

Lukas Ernst, Christian Koenig

European State Aid Law Quarterly, Volume 12 (2013), Issue 1, Page 37 - 39

I. The German regulatory and legal framework The German regulatory and legal framework regarding the energy sector was amended in 2011 after the huge nuclear disaster in the Japanese nuclear power plant in Fukushima. The German government decided overnight to exit nuclear power technology faster than planned. The first couple of plants were shut down within days after the decision. Since then, Germany’s policy aims at a material switch to energy

Book Reviews journal article

Christian Koenig, Dragana Damjanovic

European State Aid Law Quarterly, Volume 12 (2013), Issue 1, Page 187 - 188

Infrastrukturfinanzierung in Häfen und europäisches Beihilfenrecht Infrastructure Funding of Ports under EU-State Aid Law By Wibke Mellwig LIT Verlag, 2011, ISBN 978-3-643-11332-0, 247 pp., € 34.90

EU State Aid Law: The Main Legislation – Commented Edition By Rumyana Spasova Intersentia, 2011, ISBN: 978-3-7083-0777-0, 174 pp., €44,–

EStAL 4|2012 Book Reviews 187 The PhD dissertation on „Infrastructure Funding of Ports under EU-S

Better Downstream Regulation through a More Refined State Aid Law Approach! journal article

Christian Koenig

European State Aid Law Quarterly, Volume 10 (2011), Issue 3, Page 395 - 397

A lot of wood has been cut by the paper industry to print abstracts on the State Aid Action Plan (SAAP) and its Less and Better Target-Oriented State Aid Approach. Indeed, its “roadmap” guides us through some long and winding roads of economic thought, but leaves its practical impacts on the case law in the dark. If State aid, as regulation in general, is intended to remedy market failures, as distinguished sharply from government failures, due to, inter alia, externalit

State Aid Screening of Hospital Funding Exemplified by the German Case journal article

Christian Koenig, Julia Paul

European State Aid Law Quarterly, Volume 9 (2010), Issue 4, Page 755 - 770

I. Introduction The application of European State aid rules on public funding of hospitals has always been one of the most sensitive issues dealt by the European Commission and the European Courts1. The provision of health care has always been considered to be part of the Member States’ very own responsibilities of universal coverage. Since health care issues are genuinely of substantial social and economic importance for public authorities, the scope

A New Sound Approach to EC State Aid Control of Airport Infrastructure Funding journal article

Christian Koenig, Ana Trías

European State Aid Law Quarterly, Volume 8 (2009), Issue 3, Page 12

I. Introduction: The Problem before Us State Aid in the aviation sector may serve several purposes and can be granted in various ways.1 According to the Commission Communication OJ 2005/C 312/01 on Community Guidelines on Financing of Airports and Start-up Aid to Airlines Departing from Regional Airports (the “2005 Guidelines”), State aid in the airline industry can adopt the following basic forms: aid for airport infrastructure funding, start-up aid

The European Commission’s hidden asymmetric Regulatory Approach in the Field of Broadband Infrastructure Funding journal article

Christian Koenig, Sonja Fechtner

European State Aid Law Quarterly, Volume 8 (2009), Issue 4, Page 10

I. Introduction The contribution reviews the European Commission’s approach to State aid control in the field of Broadband Infrastructure Funding. The Commission’s current policy in this field is a demonstrative example for its inconsistent and asymmetric assessment of State measures when applying the State aid rules of the Treaty. The “Community Guidelines for the application of State aid rules in relation to rapid deployment of broadband networks” s

“Instant State Aid Law” in a Financial Crisis, State of Emergency or Turmoil journal article

Christian Koenig

European State Aid Law Quarterly, Volume 7 (2008), Issue 4, Page 3

European Commissioner Neelie Kroes has consistently stated that the European State aid system is and should continue to be a part of the solution to the financial crisis, and not a part of the problem. The system has to provide a Europe-wide response to a World-wide problem, while allowing Member States to act quickly and assuring market actors that their efforts won’t be jeopardised by EC rules. For this purpose, the European Commission issued on Oct