Vittoria Musardo

European State Aid Law Quarterly, Volume 20 (2021), Issue 2, Page 217 - 228

The current revision of the Energy and Environmental State aid guidelines (EEAG) represents a unique opportunity to update and adapt the current regime to reflect the latest EU regulatory and policy developments on climate change and environmental protection and especially the new goals of the European Green Deal. In this context, it becomes paramount to develop a clear and consistent approach for singling out aid measures which are truly capable of bringing about a further level of environmental protection, necessary for attaining such bold and farsighted objectives. The present article will seek to develop a consistent evaluation model for identifying aids which are truly environmental in nature, ensuring that the advantages allocated are targeted and limited to what is strictly necessary. This standard will build on the potential for a strategic use of the Incentive Effect criteria in the assessment of the compatibility of aid measures, aimed at making sure that the behavioural shifts induced by the latter are capable of attaining a level of environmental benefit consistent with the heightened environmental objectives introduced by the Green Deal. Keywords: Green Deal; EEAG; Incentive Effect; renewable energy; environmental aid.

Caroline Buts, Péter Staviczky

European State Aid Law Quarterly, Volume 20 (2021), Issue 4, Page 546 - 559

Eesti Pagar constitutes a milestone in State aid law. This article provides an overview of the judgment and discusses, in chronological order, the topics of the five questions dealt with by the Court. First, we review the importance of the criterium incentive effect and more specifically the timing of the aid application in relation to the start of the project. Second, we analyse the obligation of a national authority to recover unlawful aid, also in the absence of a Commission decision. Third, we investigate whether actions by national authorities (in breach of EU law) can cause legitimate expectations for an aid beneficiary. Fourth, regarding recovery procedures without a Commission decision, we reflect on the pertinent limitation period. Finally, we examine the applicable recovery interest rate. Keywords: incentive effect; complaints; recovery; (recovery) interest rate/reference rate; limitation period, GBER, illegal aid, obligation of national granting entities 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).

Sebastiaan Cnossen, Georges Dictus

European State Aid Law Quarterly, Volume 20 (2021), Issue 1, Page 30 - 40

More than five years ago, the European Commission provided further guidance on local support measures by establishing three criteria in order to exclude an effect on trade. As authors explain in this article, this approach fits well within the existing case law of the CJEU and has also been recently endorsed by the General Court. At the same time, authors critically assess the decision practice of the Commission which often lacks a solid assessment of the three criteria. This detracts from the Commission's self-proclaimed goal to be 'big on big, small on small' and further reduce the administrative burden for public authorities and companies. This articles therefore calls upon the Commission to provide more legal certainty on the effect on trade criterion by taking the assessment of this criterion more seriously and create more precedents that stakeholders can rely on. Keywords: effect on trade; local aid; cross-border; marginal effect; notion of aid

Catherine Banet

European State Aid Law Quarterly, Volume 19 (2020), Issue 2, Page 172 - 184

Looking at the practical case of the Guidelines on State aid for environmental protection and energy (EEAG) (2014-2020) and implementation of them, this article intends to re-open the debate on the legal status of soft law instruments in EU State aid policy. It analyses the recent case law of the Court of Justice of the European Union and the manner the latter distinguishes between the legal force and the legal effects of the State aid guidelines, not only on the Commission, but also on third parties like Member States. The article puts in perspective the careful approach of the Court in not recognising the possible indirect effects of the guidelines on Member States or individuals with the procedural and structural changes in the adoption of the guidelines. With the implementation of the State Aid Modernisation, a circular process in three steps has been established between the adoption of the General Block Exemption Regulation (GBER), the new State aid guidelines and the proposals for new secondary legislation. In this process, the guidelines assume the function of a bridge, building on the binding principles enshrined in the GBER and preparing the revision of sectoral EU directives and regulations. With the upcoming revision of the GBER and the EEAG which is now scheduled for adoption in 2021, the same dynamic will most probably apply. The revision of the GBER and the EEAG will need to reflect the content of the newly adopted Clean Energy Package for All Europeans, but will also play a crucial role in preparing the grounds for amending relevant secondary legislation in line with the Commission’s European Green Deal Strategy. Keywords: EEAG 2014-2020, renewable energy, support schemes, GBER, legal force, legal effects

Steven Verschuur, Cecilia Sbrolli

European State Aid Law Quarterly, Volume 19 (2020), Issue 3, Page 284 - 289

The European Green Deal is the prelude and the foundation of a daunting, but necessary, environmental-centric industrial revolution. EU legislation has obviously dealt with environmental policies in the past, but the European Green Deal is a far-reaching project that will require unprecedented investments. The transition envisioned in the European Green Deal will also require amendments to a wide variety of existing EU legislation and policies, including in the field of State aid. The Guidelines on State aid for environmental protection and energy (EEAG), in force until the end of 2021, are the legal framework in force to assess environmental State aid. This raises the question whether these Guidelines are a suitable instrument to achieve the objectives of the European Green Deal. This paper is the first of a series that will discuss the interplay between existing State aid rules and policy on the one hand and the European Green Deal on the other. It will provide a broader introduction to the European Green Deal and its envisaged means of financing and will discuss the application of the incentive effect to the State aid assessment of national support measures to achieve objectives of the European Green Deal. Keywords: EU Green Deal, Environmental and Energy Guidelines, incentive effect, environmental targets, financing

Andrés Martin-Ehlers, Niels Frank

European State Aid Law Quarterly, Volume 19 (2020), Issue 4, Page 464 - 467

Alessandra Fratini

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 372 - 376

On 10 April 2019, the General Court handed down yet another judgment in the long-lasting Deutsche Post saga, this time addressing the challenges brought against the Commission Decision extending the formal investigation procedure with regard to the pension subsidies granted to Deutsche Post for the employees with civil servant status. While it may not be the end of the story, the judgment provides interesting insights on the binding legal effects of a Decision to extend an ongoing formal investigation, for the purposes of it constituting an act open to challenge under Article 263 TFEU. It also sheds light on the Commission’s obligation to state reasons concerning the existence of a selective economic advantage, pursuant to Article 107(1) TFEU, when the beneficiary is in a situation which cannot be compared with the one of its competitors due to the peculiar legal regime that is applicable to it. Keywords: Challengeable act; Independent effects of the Decision extending a formal investigation; Interest in bringing an action; Advantage; Duty to state reasons; Incomparable position of the beneficiary.

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.

Bernadette Zelger

European State Aid Law Quarterly, Volume 17 (2018), Issue 1, Page 28 - 42

This piece focuses on the second aspect of the fourth criterion for a measure to qualify as aid pursuant to Article 107(1) TFEU, namely whether a respective measure has an effect on trade between Member States or rather qualifies as purely local in nature. It will be demonstrated that the Commission’s existing guidance on the effect on trade criterion in its Notion of Aid Notice and its package of recent Commission decisions provide two main criteria which have to be considered when assessing whether or not a measure is local. Therefore, these packages, along with further guidance of the Commission on the effect on trade criterion in its Notion of Aid Notice, do provide a framework for identifying local measures, however, the framework provided does not pursue a ‘safe harbour’ approach like, for example, the Commission’s General Block Exemption Regulation or the De Minimis Regulation. This article provides a critical analysis of the existing legal framework and the Commission’s guidance in this respect, and concludes by suggesting a novel policy approach. Keywords: Effect on Trade; Competition; Distortion; Notion of Aid.