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Madeira Free Trade Zone: New or Existing Aid? · Case T-131/21 Região Autónoma da Madeira v Commission · Annotation by Jorge Risueño journal article

Annotation on the Judgment of the General Court (Fifth Chamber) of 21 June 2023, in Case T-131/21 Região Autónoma da Madeira v European Commission.

Jorge Risueño

European State Aid Law Quarterly, Volume 22 (2023), Issue 3, Page 337 - 342

This case note concerns Região Autónoma da Madeira’s (RAM) action for annulment of the Commission decision relating the aid scheme SA.21259 (2018/C) implemented by Portugal in favour of the free trade zone of Madeira.1 The General Court’s judgment presents a unique opportunity to analyse some key State aid concepts, including procedural aspects, such as the admissibility of infra-State bodies; concepts relating to the notion of State aid, such as the selectivity criterion; and concepts relating to the phase of recovery of unlawful aid, including the principles of legitimate expectations, legal certainty and proportionality and the limitation period. This note also addresses the Court’s assessment of whether aid is new or existing.

Illegal Aid Grafted to Public Service Contracts · Case T-292/17 Région Île-de-France · Annotation by Jakub Kociubiński journal article

Annotation on the Judgment of the General Court (First Chamber) of 12 July 2019 in Case T-292/17 Région Île-de-France v European Commission (Bus Services)

Jakub Kociubiński

European State Aid Law Quarterly, Volume 19 (2020), Issue 2, Page 199 - 204

The subsidy scheme for certain transport undertakings in Île-de-France has been found by the European Commission to be unlawful State aid but ultimately compatible with the Internal Market. Yet, breach of the obligation to notify, declared in the Commission's decision, have resulted in its repeal by national courts and with subsequent adoption of a recovery order of previously received subsidies. Which in turn has led to (unsuccessful) action for the annulment of the Commission's decision in an attempt to eliminate the original legal basis for recovery. The following issues were raised: grounds for classifying a measure as new aid; extent of the obligation to state reasons; the fulfilment of selectivity and advantage criteria.

The Thin Red Line Between Existing and New Aid: The Buonotourist Case · Case T-185/15 Buonotourist Srl v European Commission · Annotation by Davide Guadagnino journal article

Annotation on the Judgment of the General Court (Second Chamber) of 11 July 2018 in Case T-185/15 Buonotourist Srl v European Commission.

Davide Guadagnino

European State Aid Law Quarterly, Volume 18 (2019), Issue 2, Page 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.

State Aid and the Free Movement Provisions · Case C-598/17 A-Fonds v Inspecteur van de Belastingdienst · Annotation by Marc Custers and Boyd Wolffers journal article

Annotation on the Judgment of the Court of Justice (First Chamber) of 2 May 2019 in Case C-598/17 A-Fonds v Inspecteur van de Belastingdienst.

Marc Custers, Boyd Wolffers

European State Aid Law Quarterly, Volume 18 (2019), Issue 4, Page 561 - 566

This annotation explores the relation between the free movement provisions and State aid in the light of the A-Fonds Case. In A-Fonds, the Court of Justice of the European Union dealt with the question whether a national court may conclude that a measure infringes the freedom of capital with respect to a measure that had been declared State aid by the Commission. A finding that the national court may test the contested measure against the free movement provisions (for the years that the measure constituted existing aid) would have as its result that the measure must be made available to comparable foreign taxpayers. Existing aid should in that case be extended. But that would not have been the only result: such conclusion would have broad consequences. The CJ rules in the A-Fonds Case that the national court may not test the contested measure against the free movement provisions, but has ruled differently in other Cases when dealing with the same issue. This annotation provides an analysis of the different approaches that the CJ took when deciding whether a State aid measure may be tested against the free movement provisions together with the consequences of the different approaches. Keywords: Free movement provisions; Freedom of capital; Existing aid; New aid; National courts; Direct taxation.

Can an ICSID Award be State Aid? · Cases T-624/15, T-694/15 and T-704/15 Micula · Annotation by Marija Momic journal article

Annotation on the Judgment of the General Court (Second Chamber, Extended Composition) of 18 June 2019 in Cases T-624/15, T-694/15 and T-704/15 European Food SA and Others v European Commission (Micula)

Marija Momic

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 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.

Alteration to an Existing State Aid · Cases C-510/16 Carrefour, C-492/17 Südwestrundfunk and T-679/16 Athletic Club · Annotation by Benjamin Cheynel journal article

Annotations on the Judgments of the Court of Justice (Fourth Chamber) of 20 September 2018 in Case C-510/16 Carrefour Hypermarchés and Others, of 13 December 2018 in Case C-492/17 Südwestrundfunk v Tilo Rittinger and Others, and of the General Court (Fourth Chamber) of 26 February 2019 in Case T-679/16 Athletic Club v Commission

Benjamin Cheynel

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 404 - 412

DEI v European Commision  ∙ C-590/14 P ∙ Annotation by Mihalis Kekelekis journal article

Annotation on the Appeal Judgement of the CJEU (Tenth Chamber) in Case C-590/14 P DEIof 21 October 2016 (the Follow-Up of Case T-542/11 Alouminion v European Commission)

Mihalis Kekelekis

European State Aid Law Quarterly, Volume 16 (2017), Issue 2, Page 291 - 294

The notion of existing aid has a huge importance in State aid control. Procedural rules for existing aid differ from those regarding new aid. The consequence of granting new or existing aid is also different: from recovery to a proposal to adopt appropriate measures and modify the scheme. As other notions in the State aid field, despite its importance, the notion of existing aid is still evolving by the case-law of the EU courts. This should be an objective concept but as this judgment reveals, it may also be influenced by a subjective analysis regarding State aid compatibility. This judgment also clarifies the role of national courts in the State aid field. National courts must not only serve as guarantors of the direct effect of Article 108(3) TFEU but also as potential aid granting authorities. Keywords: Existing Aid; New Aid; Recovery; Duration; Alteration of an Existing Aid; National Courts; Notification.

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