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Economic Continuity in State Aid Recovery Cases · Case C-890/19 P Fortischem a.s. v European Commission · Annotation by Sami Hartikainen journal article

Annotation on the Judgment of the Court of Justice (Ninth Chamber) of 29 April 2021 in Case C-890/19 P Fortischem a.s. v European Commission

Sami Hartikainen

European State Aid Law Quarterly, Volume 21 (2022), Issue 3, Page 316 - 320

In State aid law, the question of economic continuity often arises when assets of a failing company are sold to a third party. The crucial question is whether the recovery of illegal aid shall be extended to the new owner, if the latter has paid market price for the assets. While the answer still depends on the actual circumstances of a case, the latest judgment in case Fortischem suggests that economic continuity is rather rule than an exception and that a new owner can not easily avoid the obligation to repay illegal aid, especially if the assets are used in a similar manner as by the previous owner. However, the Court of Justice does not go as far as the General Court in ignoring the significance of market price in the assessment.

When a Member State Admits an Aid to Be Incompatible · Case T-778/17 Autostrada Wielkopolska · Annotation by Marek Rzotkiewicz journal article

Annotation on the Judgment of the General Court (Ninth Chamber) of 24 October 2019 in Case T-778/17 Autostrada Wielkopolska S.A. v European Commission

Marek Rzotkiewicz

European State Aid Law Quarterly, Volume 19 (2020), Issue 2, Page 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.

The Commission’s New Recovery Notice journal article

A Handbook for the Recovery of Unlawful and Incompatible Aid

Simone Donzelli

European State Aid Law Quarterly, Volume 18 (2019), Issue 4, Page 528 - 539

In July 2019, following a public consultation, the European Commission adopted a new notice on the recovery of unlawful and incompatible aid, replacing the previous 2007 Notice. The new Recovery Notice represents the state of the art of the existing legislation and Case law about recovery policy. This article introduces the key topics of the Recovery Notice, from the general principles to infringement proceedings, passing through some crucial issues such as the identification of the beneficiaries, the quantification of the aid and recovery in the context of insolvency proceedings. Selected comments from the public consultation are also presented, analysed and discussed. The article, in line with the Recovery Notice, stresses the central role of cooperation between the Commission and the Member States to implement recovery Decisions and concludes that the Recovery Notice is a comprehensive tool to enforce State aid rules in line with the current regulatory framework and Case law of the Union Courts. Keywords: Recovery; Unlawful aid; Incompatible aid; Infringement; Insolvency.

ARTICLES - STATE AID AND NATIONAL JURISDICTIONS ∙ Recovering Unlawful and Incompatible Aids by National Courts: CELF and Scott/Kimberly Clark Cases journal article

Denis Jouve

European State Aid Law Quarterly, Volume 16 (2017), Issue 3, Page 367 - 376

In CELF and Scott/Kimberly Clark cases, the Court of Justice clarified the role and the power of national courts to recover unlawful State aids. This fundamental role to protect individuals’ rights varies depending on Commission intervention. When the Commission has issued a final decision, national courts become the guardian of this decision, they have to control the execution in national law. In this situation, their room for manoeuvre is reduced. Pending a final Commission decision, it is for the national court to safeguard the rights of individuals and the effectiveness of Article 108(3) of the Treaty. Therefore, national courts shall take all relevant measures in order to protect individuals’ rights and to stop unlawfulness. It is forced to act even if Commission has decided on State aid compatibility but it has more freedom and it is possible to not order recovery. Keywords: Recovery; Unlawful Aid; Incompatible Aid; National Courts; CELF; Scott/Kimberly Clark.

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