Philipp Reinhold, Thomas Weck

European State Aid Law Quarterly, Volume 23 (2024), Issue 1, Page 22 - 34

The new industrial competition in the digital and ecological age has led to a global subsidy race. Against this backdrop, the EU's new instrument for foreign subsidies seems to have come at just the right time. However, the initial euphoria, particularly among companies in the EU that are under strong competitive pressure from China, has faded. There are more and more complaints about the extreme lack of clarity, particularly with regard to the comprehensive notification obligations, which is leading to considerable legal uncertainty. Until more detailed guidelines and/or exemptions are published, a step-by-step approach regarding the individual requirements and a corresponding risk assessment are essential. This also includes a better understanding of the concept of a foreign subsidy envisaged by the EU. Keywords: FSR; Foreign Subsidies Regulation; Merger; Public Procurement; Notification

Ulrich Soltész

European State Aid Law Quarterly, Volume 22 (2023), Issue 2, Page 175 - 180

Leigh Hancher

European State Aid Law Quarterly, Volume 21 (2022), Issue 1, Page 72 - 86

In Case T-793/14 Tempus UK, the General Court (GC) had concluded that the EC should have opened the formal procedure provided for in Article 108(2) TFEU into a complex UK measure on a capacity mechanism remuneration (the UK CRM), on the grounds that the assessment of the compatibility of the measure notified with the internal market gave rise to doubts within the meaning of Article 4 of Regulation No 659/1999. The GC considered inter alia that the observations from third parties, the length of the pre-notification procedure (18 months), and the complexity and novelty of the measure indicated that the Commission should have had doubts about the compatibility of the measure with the internal market. The ECJ subsequently overturned this GC. In the following Tempus Poland case, the GC applied the ECJ’s approach. One of the most interesting features of the Tempus cases is the role of the pre-notification period and its impact, if any, on third party or ‘interested party’ rights in the further stages of the procedures. It is this feature of the Tempus cases that will be a primary focus of this article. Keywords: GC; Tempus; Milestones; pre-notification; interested party Milestones Preview: this article is based on a chapter in the upcoming second edition of the book 'Milestones in State Aid Case Law' (Lexxion 2022).

Anna Nowak-Salles

European State Aid Law Quarterly, Volume 20 (2021), Issue 3, Page 359 - 369

This article, based on a thesis defended at the European University Institute in October 2020, pursues a twofold aim: first, to apply the error framework, which is an economic analysis tool used in competition law, to State aid, and to discover what determines the expected cost of error in this area. Second, to reflect on whether this expected cost might be reduced and to provide ideas where improvements might be sought. For this purpose, it verifies whether errors in State aid assessment at the Commission and the national level are rare, cheap and effectively corrected. On the basis of this analysis, which constitutes an original assessment of the reform of Procedural Regulation and of the GBER, it draws useful conclusions and formulates some recommendations as to how to increase accuracy at a reasonable cost. Keywords: State aid procedure; error in assessment; notification procedure; GBER.

Alessandra Fratini

European State Aid Law Quarterly, Volume 20 (2021), Issue 1, Page 150 - 153

The Court of Justice confirmed the obligation for a national judge to order the payment of illegality interest also where the aid, implemented in breach of Article 108(3) TFEU, has been declared by the Commission compatible with the internal market under Article 106(2) TFEU. By extending the findings in CELF to illegal State aid granted in favour of undertaking entrusted with the operation of services of general economic interest, the Court has clarified that the performance of SGEI tasks cannot, in and of itself, justify an exemption from the notification and standstill requirements under Article 108(3) TFEU.

Kiran Desai

European State Aid Law Quarterly, Volume 19 (2020), Issue 4, Page 536 - 542

Kristina Schattat, Natalia Budzynska

European State Aid Law Quarterly, Volume 17 (2018), Issue 3, Page 399 - 411

The compatibility assessment of a State aid measure is about balancing its negative effects on trade and competition in the common market with its positive effects in terms of a contribution to the achievement of well-defined objectives of common interest. One key element for the Commission’s so-called ‘balancing test’ of operating aid under the 2014 Aviation Guidelines is an ex-ante business plan ensuring that the company managing the airport will be able to cover all operational costs as of 2024 at the latest. Another key element for the assessment is the analysis of the catchment area of concerned airports. This article discusses the role of financial and economic analysis and evidence in this balancing test. The Commission Decisions published so far on this type of aid have not included many technical details about the economic and financial analysis of the Commission’s assessment. Neither has the Commission published specific guidance for the Member States on these elements. This article aims to shed light on these aspects by not only reviewing the decisional practice of the Commission but by sharing the practical experience of the authors with helping Member States to receive the Commission’s approval for granting operating aid to regional airports. Keywords: Balancing Test; Compatibility Assessment; Economic and Financial Analysis; Operating Aid; Airport; Infrastructure; Aviation Guidelines 2014; Notification; Business Plan; Operating Funding Gap; Cost of Capital; Catchment Area.

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.