Juliette Delarue

European State Aid Law Quarterly, Jahrgang 19 (2020), Ausgabe 1, Seite 105 - 110

Alongside long-term political commitments and robust administrative planning, a successful decarbonisation of the energy sector requires supportive measures, of which some may qualify as State aid. For the ‘Coal-to-Clean Transition’ these may include: compensation for the closure of coal facilities; efforts to achieving a fair and just transition in regions hitherto dependent on coal mining or coal use; and adequate interventions to ensure security of electricity supply. The conference of 14 November 2019 highlighted that a precise scrutiny of State aid aspects of these politically-sensitive measures by the Commission is required to ensure certainty for Member States, operators and the general public alike. Keywords: Just transition; Capacity mechanisms; Compensations; Coal phase-out; Energy transition.

Nicole Robins, Laura Puglisi, Ling Yang

European State Aid Law Quarterly, Jahrgang 19 (2020), Ausgabe 2, Seite 137 - 149

In response to the COVID-19 pandemic, the European Commission quickly provided guidance on how Member States can support companies during the crisis in a manner that is in line with State aid rules. With the Commission having approved €2.6 trillion of aid notified by Member States since the start of the pandemic, State aid rules have come under the spotlight more than ever before. Some argue that the different approaches adopted by Member States to deal with the crisis create significant competitive distortions between Member States, while others argue that State aid rules should be made more lenient. This article discusses the State aid tools that Member States can use to deal with the effects of the pandemic, focusing on the role of economic and financial analysis to support the application of these tools. The article examines how Member States can provide liquidity support to companies in compliance with State aid rules, before looking at how Member States could provide more longer-term funding solutions to companies to deal with the effects of the pandemic without breaching State aid rules. Keywords: COVID-19, liquidity support, compensation for damages, rescue aid, restructuring aid, economic and financial analysis, recapitalisations

Marek Rzotkiewicz

European State Aid Law Quarterly, Jahrgang 19 (2020), Ausgabe 2, Seite 205 - 211

The granting of State support for entities is a politically sensitive subject. Member States often grant aid and then, when questioned by the Commission, defend it vigorously claiming that there was no aid at all, or that such aid was compatible with internal market rules. Different situations, ie in which Member States admit granting aid and also confirm that such aid was incompatible with internal market rules, are rare occasions. In the exceptional cases where Member States may have opposing interests to those of an entity, it is particularly important for the Commission to give the entity the opportunity to submit meaningful comments to defend its rights.

Begoña Pérez Bernabeu

European State Aid Law Quarterly, Jahrgang 19 (2020), Ausgabe 3, Seite 329 - 338

In its long-awaited ruling on 18 June 2019, the General Court (GC) annulled the Commission's State aid Decision in the Micula case where the Commission considered that the damages payment by Romania of an ICSID award constituted State aid. In the GC's opinion, the payment of the adverse arbitration award by a Romania does not constitute illegal State aid. Unfortunately, the GC's reasoning is tied to the timing of the measure taken by Romania, which took place before Romania acceded to the EU, and the rest of the compelling substantive pleas were not assessed. Moreover, the GC did not rule on whether the compensation of the withdrawal of the tax incentives for the post-accession period constitutes State aid given that the Commission failed to distinguish between compensation for the period predating accession and post-accession. For this reason, this judgment does not put an end to the Micula saga as long as the Commission has lodged an appeal before the Court of Justice. Keywords: arbitral award, Bilateral Investment Treaty (BIT), repeal of tax incentives, damages compensation, enforcement

Davide Guadagnino

European State Aid Law Quarterly, Jahrgang 18 (2019), Ausgabe 2, Seite 192 - 197

This note offers a detailed overview on the Buonotourist Case (T-185/15), where the General Court confirmed Commission Decision 2015/575 ordering the recovery of the beneficiary’s extra compensation regime. It provides an in-depth analysis of the application of Regulation (EC) 659/1999, highlighting the procedural and substantive aspects relating to the notions of ‘existing aid’ and ‘new aid’. First, the note provides a description of the background to the dispute, focusing on the compensation granted to Buonotourist Srl for the costs occurred in the fulfilment of its public service obligations, as well as the related Commission Decision. Then, the Court’s reasoning is underlined, namely the assessment of the compensatory regime in the light of the exemption established under Article 11 of Regulation (EEC) 1191/69 and the Altmark judgment. The annotation highlights the controversial aspects of the measure, such as the ex post calculation of the compensation and the absence of unilaterally imposed public service obligations, which led to its classification as ‘new aid’. Finally, the author’s opinion is given, focusing on the nature of public service obligations and the applicability of Article 93 TFEU in the case at hand. Keywords: Public transport; SGEI; Compensation; Altmark; New aid.

Marija Momic

European State Aid Law Quarterly, Jahrgang 18 (2019), Ausgabe 3, Seite 346 - 351

On June 18, 2019, the General Court rendered the judgment in the Micula Case, trying to put an end to the more-than-a-decade-long Micula saga. The judgment was expected to clarify the question of when an arbitral award for the compensation of damages can be regarded as State aid. The Case, however, was decided on a rationae temporis issue, and the General Court did not provide a more detailed guidance on that question. Since all the events relating to the State aid took place before Romania’s accession to the EU, the General Court concluded the Commission did not have the jurisdiction to review the legality of the State aid granted to Romanian investors. Considering that part of the compensation awarded to the applicants included the period after Romania’s accession, the General Court left open the possibility for the Commission to re-assess the compatibility of the compensation for the post-accession period. The Commission, however, has decided to challenge the ruling before the Court of Justice. Keywords: Award of Damages; Investor-State Arbitration; New Aid; Compensation.

Nicole Coutrelis, Thomas Gourdeau

European State Aid Law Quarterly, Jahrgang 16 (2017), Ausgabe 4, Seite 639 - 641

Grith Skovgaard Ølykke

European State Aid Law Quarterly, Jahrgang 16 (2017), Ausgabe 2, Seite 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.

Phedon Nicolaides

European State Aid Law Quarterly, Jahrgang 16 (2017), Ausgabe 2, Seite 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.