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Do Member States Grant State Aid When They Act as Regulators? journal article free

Phedon Nicolaides

European State Aid Law Quarterly, Volume 17 (2018), Issue 1, Page 2 - 18

When Member States act as regulators, they need not maximise revenue from the granting of permits, licences or concessions rights. However, they must grant permits, licences or concession rights on the basis of procedures which are open, transparent, non-discriminatory and unconditional. This article argues that qualitative selection criteria may not in fact support the effective achievement of the stated regulatory objectives and, as a result, they may confer an advantage and transfer State resources to the chosen undertakings. Since the concept of State aid does not depend on policy aims or intentions, the regulatory objectives of the authority that grants the exclusive permits, licences or concessions should be irrelevant. EU law does not prevent Member States from using procedures that can aim simultaneously at revenue maximisation and achievement of public policy objectives. Keywords: Competitive Selection; Regulation; Non-Discrimination.


The Definition of the Reference Tax System is still a Puzzle · Case C‑203/16 P Heitkamp BauHolding v European Commission · Annotation by Phedon Nicolaides journal article

Annotation on the Judgment of the Court (Second Chamber) of 28 June 2018 in Case C‑203/16 P Dirk Andres (acting as liquidator in the insolvency of Heitkamp BauHolding GmbH) v European Commission.

Phedon Nicolaides

European State Aid Law Quarterly, Volume 17 (2018), Issue 3, Page 419 - 427

A tax measure is selectivity if it deviates from the reference tax system and if it cannot be justified by the logic or internal economy of the reference system. In order to determine whether a tax measure deviates from the reference system, only its effects are taken into account, not the regulatory technique used by the Member State in question Keywords: Selectivity; Reference tax system; Regulatory techniques.


The Case of the Spanish Tax Lease System · Case C-128/16 P Commission v Spain · Annotation by Phedon Nicolaides journal article

Annotation on the Judgment of the Court (Second Chamber) of 25 July 2018 in Case C-128/16 P European Commission v Kingdom of Spain and Others.

Phedon Nicolaides

European State Aid Law Quarterly, Volume 17 (2018), Issue 3, Page 412 - 418

A tax measure can be selective in relation to both direct and indirect beneficiaries. A beneficiary that passes on all benefits to third parties may still derive a selective advantage. The selectivity of such advantages have to be determined on the basis of their effects, not the form of the tax. Keywords: Selectivity; Direct beneficiaries; Indirect beneficiaries; Passing on advantage.


Is there a Need for a New Concept of ‘Ex-ante Creditor’? journal article

Consequences of the FIH Holdings Judgment

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.



Not Even the Church Is Absolved from State Aid Rules: The Essence of Economic Activity journal article

Phedon Nicolaides

European State Aid Law Quarterly, Volume 16 (2017), Issue 4, Page 527 - 536

The boundaries of the concept of economic activity are constantly shifting. This paper examines the case of schools run by the church and funded by the State. The Court of Justice concluded that wholly State-funded education is not economic in nature. The paper criticises this approach of the Court. The source of funding should not have been the decisive criterion, for the simple reason that State aid to enterprises is also provided by the State. The decisive criterion should have been whether the purpose of the funding was to support an activity which was intended to be offered for remuneration. Keywords: Economic Activity; State Resources; Public Education.


What is Normal? journal article

Phedon Nicolaides

European State Aid Law Quarterly, Volume 16 (2017), Issue 2, Page 146 - 153

A question that is often asked is whether companies derive an advantage in the meaning of Article 107(1) TFEU if they receive compensation for the extra costs they incur when they have to provide services as a result of obligations imposed on them by the State. The answer given in the case law is that no advantage is obtained when such compensation satisfies the so-called “Altmark” conditions. Recently, however, the General Court and the Court of Justice have provided contradictory answers in relation to compensation for the extra costs of pension obligations towards former civil servants. While the Court of Justice followed the consistent approach of the case law, the General Court considered that the extra costs incurred by Deutsche Post, the undertaking in question, were not normal because such costs were not borne by other postal operators. This article argues that the reasoning of the General Court is defective or at least incomplete because it failed to take into account the total employment costs of Deutsche Post from employing former civil servants and whether it could have enjoyed other advantages from their employment. Keywords: Advantage; Normal Costs; Distortion of Competition; Compensation.


ARTICLES ∙ Excessive Widening of the Concept of Selectivity journal article

Phedon Nicolaides

European State Aid Law Quarterly, Volume 16 (2017), Issue 1, Page 62 - 72

This article argues that different treatment of companies resulting from the application of different rules is not selective as long as any company has the option to choose the rule. A measure should be considered selective when it reserves different treatment only for certain companies. The article applies this reasoning to the judgment of the Court of Justice in the World Duty Free judgment of 21 December 2016 and concludes that the Court of Justice has widened excessively the concept of selectivity. The widening is excessive because it applies to otherwise general tax measures that offer options to companies to reduce their tax liability by carrying out particular activities. Keywords: Selectivity; Taxation; Goodwill.


Manufacturing in Small Peripheral Island States: Where is the Level Playing Field? journal article

Caroline Buts, Phedon Nicolaides

European State Aid Law Quarterly, Volume 16 (2017), Issue 2, Page 272 - 275

While many islands can be attractive tourist destinations, other parts of the economy often face serious challenges that are the direct result of natural and permanent handicaps. Small islands encounter difficulties in attracting and maintaining manufacturing activities. Additional transport costs as well as the absence of economies of scale and low connectivity can result in investment decisions on the mainland, rather than the island. Multiple policies exist to help islands balance out the disadvantage of being remote, small or sparsely populated. Nevertheless, the State aid rules treat small and remote islands differently, depending on whether they are a region or a Member State. After briefly reviewing the main difficulties encountered by islands, we study the case of Malta. Next, the relevant State aid rules are evaluated, revealing inconsistencies and the need for revisions with important consequences for Malta and Cyprus. Keywords: Regional State Aid; Peripheral Islands; Island States; Transport Costs; Industrial Base.