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Are National Courts Becoming an Extension of the Commission? journal article

Phedon Nicolaides

European State Aid Law Quarterly, Volume 13 (2014), Issue 3, Page 409 - 413

C-284/12, Deutsche Lufthansa v Flughafen Frankfurt-Hahn

I. Introduction Article 108(3) TFEU requires Member States to notify all new aid to the European Commission for authorisation. As long as the Commission carries out its assessment of the measure, Member States may not implement the aid. This obligation, of course, applies only to public measures that contain State aid. It follows that if a measure does not contain State


A Critical Analysis of Environmental Tax Reductions and Generation Adequacy Provisions in the EEAG 2014-2020 journal article

Phedon Nicolaides, Maria Kleis

European State Aid Law Quarterly, Volume 13 (2014), Issue 4, Page 636 - 649

The new Guidelines on State Aid for Environmental Protection and Energy which were adopted on the 9th of April 2014 are broader in scope than the previous Guidelines. This article argues that the provisions of the EEAG with respect to reductions of environmental taxes and green levies are inadequate in several respects. In particular, they are weak on the necessity and proportionality of aid. The article also considers the inclusion of generation adequacy objectives i


Taxes, the Cost of Capital and the Private Investor Principle journal article

Phedon Nicolaides

European State Aid Law Quarterly, Volume 12 (2013), Issue 2, Page 243 - 245

I. Introduction The Court of Justice recently addressed the question whether the State can convert an amount of tax owed by company into equity for that company. This possibility raises a bigger question: can the State can act as a private investor by using fiscal resources which, by their very nature, are not available to private investors? The answers of the Court of Justice to both questions were in the affirmative. In the EDF case, the Court uphel


The Concept of Selectivity: An Ever Wider Scope journal article

Phedon Nicolaides, Ioana Eleonora Rusu

European State Aid Law Quarterly, Volume 11 (2012), Issue 4, Page 791 - 803

In order to determine whether a tax measure is selective, it is encessary to define the reference tax system. Although the intentions of public authorities are not relevant in the classification of a measure as State aid, the cases reviewed in this article reveal that intetions are important in establishing the reference tax system. Normally, tax measures are found to be selective because they provide for exceptions for certain undertakings or products. The cases reviewed


Private Investor Principle: What Benchmark and Whose Money? journal article

Phedon Nicolaides, Ioana Eleonora Rusu

European State Aid Law Quarterly, Volume 10 (2011), Issue 2, Page 237 - 248

I. Introduction Article 345 of the Treaty on the Functioning of the European Union requires neutrality in the treatment of public and private undertakings and in the treatment of public and private investors. One of the implications of this provision is that public authorities are at liberty to invest in undertakings. Public authorities may extend loans, inject capital, subscribe to shares or purchase outright any company. However, Article 107(1) TFEU


Cumulation of De minimis Aid to Enterprises that form a Single Economic Unit journal article

Phedon Nicolaides, Maria Kleis, Mihalis Kekelekis

European State Aid Law Quarterly, Volume 7 (2008), Issue 1, Page 7

I. Introduction Article 87(1) of the EC Treaty declares any form of State aid to be incompatible with the common market. This incompatibility effectively means that any public measure that satisfies the criteria laid down in Article 87(1) is in principle prohibited unless it can qualify for one of the exceptions allowed by the Treaty, primarily in Article 87(2)&(3). Commission Regulation 1998/2006 of 15 December 2006 on the application of Articles 87


Incentive Effect: Is State Aid Necessary when Investment Is Unnecessary? journal article

Phedon Nicolaides

European State Aid Law Quarterly, Volume 7 (2008), Issue 2, Page 9

I. Introduction State aid is in principle prohibited by Article 87(1) EC for being incompatible with the common market because it distorts competition. This prohibition is not absolute. State aid may be exempted when it is capable of leading recipient undertakings to do something they would not normally do under conditions of free competition. In this way, undertakings can be induced to change their practices so that they facilitate the achievement of


Where Is the Advantage ? The Case of Public Funding of Infrastructure and Broadband Networks journal article

Phedon Nicolaides, Maria Kleis

European State Aid Law Quarterly, Volume 6 (2007), Issue 4, Page 23

I. Introduction Public funding of „general infrastructure“ is not state aid and, therefore, is in principle not prohibited by Article 87(1) of the EC Treaty. The reason is that this kind of public funding does not confer an advantage to any specific undertaking. By contrast, public funding of „user-specific infrastructure“ does confer an advantage to certain undertakings and is normally regarded to be a form of state aid. However, in practice it


Developments in Fiscal Aid: New Interpretations and New Problems with the Concept of Selectivity journal article

Phedon Nicolaides

European State Aid Law Quarterly, Volume 6 (2007), Issue 1, Page 7

I. Introduction Policy and practice on State aid in the form of tax advantages is evolving rapidly. This kind of State aid, also known as fiscal aid, lies on the boundary of the division of competences between the European Community and Member States. I have analysed policy developments and the case law for the period 1997-2005 in a number of other papers.1 In this short paper I focus on three recent cases that seem to be breaking new ground and there


The Concept of Undertaking in Education and Public Health Systems journal article

Maria Kleis, Phedon Nicolaides

European State Aid Law Quarterly, Volume 5 (2006), Issue 3, Page 4

I. Introduction Member States finance public universities or research establishments and hospitals. Since public measures only constitute State aid when the recipient is classified as an undertaking, the question whether the above-mentioned establishments are covered by the concept of an undertaking is crucial for the application of Article 87(1) EC. At a first glance, the answer to this question seems to be simple. One just has to apply the definitio