Phedon Nicolaides

European State Aid Law Quarterly, Volume 20 (2021), Issue 3, Page 370 - 383

Now that the UK is no longer a member of the European Union it has to substitute the EU system of State aid control with its own system for the control of subsidies. Brexiters have argued that this presents a unique opportunity to the UK to design a system that is less cumbersome and more effective than that of the EU. This article examines how the draft Subsidy Control Bill intends to address the three problems of the design of institutions responsible for the control of State aid or subsidies; ie the problems of discovery, assessment and enforcement. If finds that, by comparison to the EU system, the proposed UK system seems to grant more leeway to public authorities and to impose fewer formal requirements but also to require assessment of most subsidies by the Competition and Markets Authority (CMA). At the same time, the greater leeway creates more uncertainty about the conformity of subsidies with the various principles laid down in the Subsidy Control Bill. The Bill also leaves several issues unclear, especially with regard to the status of subsidies which are not referred to the CMA or subsidies which are granted contrary to CMA recommendations. The powers of the CMA are certainly more limited than those of the Commission. Keywords: EU-UK Trade and Cooperation Agreement; UK Subsidy Control Bill; State aid regime; Competition and Markets Authority; Competition Appeal Tribunal.

Valérie Noël, Sébastien Thomas

European State Aid Law Quarterly, Volume 20 (2021), Issue 4, Page 512 - 528

In the Montessori ruling, the Court of justice confirmed the right of competitors of an aid scheme to bring an appeal against a Commission decision relating to this scheme. The ruling provides a flexible interpretation of the three conditions laid down in the third limb of Article 263(4) TFEU. We analyze the judgment of the Court and show that it creates differences in the ability of competitors of beneficiaries of State aid to access EU courts. Access is easier if the aid flows from a state aid regime rather than if the aid is granted individually. The Montessori ruling could have important implications for the notion of 'direct concern' in other areas of EU law such as anti-dumping. To date, the Court seems to restrict the use of the Montessori ruling to rules on State aid. This approach could create confusion and lead to more stringent conditions regarding the notion of direct concern in other areas of EU law. Keywords: admissibility; locus standi; regulatory act; direct concern; regulatory act not entailing implementing measures; right not to be subject to competition distorted Milestones Preview: this article is based on a chapter of the upcoming second edition of the book 'Milestones in State Aid Case Law' (Lexxion 2022).

Anikó Keller, Sam Baldwin

European State Aid Law Quarterly, Volume 19 (2020), Issue 2, Page 235 - 238

Paula Riedel, Thomas Wilson, Shane Cranley

European State Aid Law Quarterly, Volume 19 (2020), Issue 2, Page 115 - 126

Against the background of the COVID-19 outbreak and the effects of public health measures on Member State economies, the Commission has acted impressively quickly to prevent State aid rules becoming a block to necessary interventions. The Commission has published a Temporary Framework under Article 107(3)(b) TFEU, which has been amended twice including to allow for recapitalisation of firms in return for State participation. Aid under this Temporary Framework along with a wide range of measures approved under Article 107 TFEU has allowed billions in aid to be granted, ensuring that liquidity is available to companies. This liquidity has avoided mass bankruptcies but comes with the risk of distortions of competition across the internal market; a risk augmented by the differences in approach of the Member States. As Member States exit the initial phase of the response to the crisis focused on liquidity, and move to more structural measures such as recapitalisations, we can expect the design of aid to be monitored even more closely to minimise market distortions. The Commission’s initial response has been flexible, swift and pragmatic and is to be lauded but many potential pitfalls remain as the crisis moves to the next phase.  Keywords: COVID-19, Temporary Framework, recapitalisation, distortion of competition

Benjamin Linke

European State Aid Law Quarterly, Volume 19 (2020), Issue 3, Page 389 - 392

Yevhen Dudnyk

European State Aid Law Quarterly, Volume 18 (2019), Issue 2, Page 216 - 219

Shuping Lyu, Caroline Buts, Marc Jegers

European State Aid Law Quarterly, Volume 18 (2019), Issue 1, Page 37 - 60

The promulgation of the Opinions of the State Council on Establishing a Fair Competition Review System During the Development of Market-oriented Systems in 2016 marked the creation of China’s Fair Competition Review System. Interestingly, a remarkable resemblance is found with the EU’s State aid control. The competition authorities of both sides also stress the importance of cooperation in this area. In June 2017 they signed a Memorandum of Understanding creating a dialogue, linking State aid control and the Fair Competition Review System. By means of a comparative analysis and expert interviews, this article focuses on two questions: i) What are the similarities and differences between the EU’s State aid control and China’s Fair Competition Review System regarding objectives, basic provisions and procedures? and ii) What are the reasons for these commonalities and differences? Keywords: China’s Fair Competition Review System; Comparative analysis; International cooperation.

Edwin Schotanus

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 359 - 365

Under the Case law of the Court of Justice (CJ), aid measures are very quickly considered to affect competition and trade between Member States (inter-State trade). Nonetheless, in certain clear, specific situations, this will not seem to be the case. The European Commission is constantly seeking ways to dispose of such issues fast, in order to focus on more harmful types of State aid. This pragmatic approach by the Commission is at odds with the CJ’s principled application of the criteria ‘effect on competition’ and ‘effect on inter‑State trade’, and may sometimes result in inconsistent Decisions. Legal certainty would be furthered by a CJ ruling about the Commission’s pragmatic approach. Keywords: effect on inter-State trade; effect on competition; appreciability; State aid.

Lina Barauskaitė

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 352 - 358

On 15 May 2019, the Court of Justice of the European Union (the CJEU or the Court) rendered a landmark state aid preliminary ruling where it assessed the Lithuanian public interest services (PIS) support measure provided to certain Lithuanian electricity producers. The measure was never notified to the European Commission and was subject to number of court disputes at the national level. The ruling confirms that the PIS support in the electricity sector constitutes State aid. In particular, the Court confirms that PIS funds can be regarded as State resources, since their life cycle (collection, administration and distribution) are strictly regulated and remains under the control of the Lithuanian State. PIS funds are also intended to finance certain services in the electricity sector, constituting a selective advantage. Moreover, due to characteristics of the Lithuanian electricity market, such as existing interconnectors and European Union electricity market liberalisation, PIS scheme is also liable to affect trade between the Member States and distort competition. Finally, the Court also expressed its doubts whether PIS should be defined as service of general economic interest (SGEI). According to the Court, the requirements for SGEI existence are not met. Keywords: Energy; Electricity; State resources; Imputability; Effect on trade; Distortion of competition; SGEI.

Jean-Alexandre Vaglio

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 418 - 423