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Exclusive Rights and State Aid journal article

Grith Skovgaard Ølykke

European State Aid Law Quarterly, Volume 16 (2017), Issue 2, Page 164 - 180

Exclusive rights are granted in order to regulate markets as one of several possible tools of public intervention. The article considers the role of State aid law in the regulation of exclusive rights. Whereas the right of Member States to organise markets as monopolies and the choice of provider are regulated by free movement rules and Article 106 TFEU, State aid law regulates the terms of the right to ensure that the beneficiary is not granted an economic advantage. Exclusive rights may be granted on various terms: for a payment, in combination with compensation or as compensation. The two former kinds of terms are regulated under State aid law which requires market terms. The granting of exclusive rights as compensation is analysed on the basis of the Eventech judgment, and it is found that when no financial transaction is included in the grant, it resembles a decision to organise a market through exclusive rights which could explain the CJEU’s somewhat ambiguous approach in Eventech. Keywords: Exclusive Rights; Services Directive; Organisation of Markets; Competitive Procedure; Compensation; Fee.


Commission v Aer Lingus and Commission v Ryanair   ∙ Joined Cases C-164/15 P and and C-165/15 P ∙ Annotation by Grith Skovgaard Ølykke journal article

Annotation on the Judgments of the Court of Justice the European Union (Third Chamber) of 21 December 2016 in Joined Cases C-164/15 P Commission v Aer Lingus and C-165/15 P Commission v Ryanair

Grith Skovgaard Ølykke

European State Aid Law Quarterly, Volume 16 (2017), Issue 1, Page 93 - 98

The annotated judgment concerns the aftermath of a differentiated taxation on travelling. The General Court partially annulled the Commission’s decision and found that the recovery of the aid should be limited to the advantage actually retained by the airlines, taking into account the competitive situation as well as the possibility that the advantage could have been passed on to the passengers through lower ticket prices. The Commission appealed this judgment and the Court of Justice of the European Union (CJEU) found for the Commission; thus, the nominal amount of aid should be recovered. The judgment thereby upholds the status quo reasonably taking into account all indirect effects of State aid. Keywords: Passing-On Defence; Recovery of Aid; Compensation; Indirect Effects.


Klausner Holtz Niedersachsen GmbH v Land Nordrhein-Westfalen   ∙ C-505/14   ∙ Annotation by  Grith Skovgaard Ølykke journal article

Annotation on the Judgment of the Court of Justice of the European Union (Second Chamber) of 15 November 2015 in Case C-505/14 Klausner Holtz Niedersachsen GmbH v Land Nordrhein-Westfalen

Grith Skovgaard Ølykke

European State Aid Law Quarterly, Volume 15 (2016), Issue 2, Page 286 - 290

In the annotated judgment a public authority uses the existence of State aid as a defence in a legal action, where its contractual partner aimed to achieve damages and fulfilment of the contracts. The public authority claimed that the contracts were not on market terms, which also was the national court’s perception. As the contracts had been declared to be in force by a declaratory judgment that was res judicata, the dispute before the CJEU concerned the national interpretation of the principle of res judicata and its application in a State aid context. The CJEU first turned to the principle of consistent interpretation, which it considered could provide various solutions for the national court to draw all the necessary consequences of the possible breach of the duty to notify State aid. In the alternative, the CJEU considered the principle of effectiveness and found that due to the fundamental principle of State aid control, the national court’s broad interpretation of the principle of res judicata could not be retained. The judgment cements the specific limitation on national principles of res judicata in a State aid context and tropicalises the issue of how breach of State aid law by public authorities and national courts might be prevented. Keywords: Articles 107 TFEU and 108 TFEU; Res judicata; Principle of Effectiveness.


Case T-437/12 Aer Lingus v Commission ∙ Case T-500/12 Ryanair v Commission ∙ Annotation by  Grith Skovgaard Ølykke journal article

Annotation on the Judgments of the General Court of 5 February 2015 in Case T-437/12 Aer Lingus v Commission and Case T-500/12 Ryanair v Commission

Grith Skovgaard Ølykke

European State Aid Law Quarterly, Volume 14 (2015), Issue 3, Page 437 - 442

The two annotated judgments concern the aftermath of a differentiated taxation on travelling, which was implemented in breach of the free movement provisions in the Treaties. Airlines (Aer Lingus and Ryanair) who were identified as beneficiaries of the advantage arising from being subject to the low level of taxation, contested the Commission’s calculation of the amount to be recovered. The General Court found for the applicants and stated that the Commission should limit itself to ordering recovery of the advantage actually retained by the airlines, taking into account the competitive situation and the possibility that the advantage could have been passed on to passengers through lower ticket prices. Even if the Commission’s approach in the cases under scrutiny could be justified, the highly complicated economic analysis prescribed by the General Court is standard in other areas of EU law, making it appealing from a perspective of coherence in the EU legal system. Keywords: Advantage; Aviation sector; Differentiated taxation; Recovery

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