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

Christopher Yukins

European State Aid Law Quarterly, Volume 22 (2023), Issue 2, Page 181 - 187

Tamás Kende, Gábor Puskás

European State Aid Law Quarterly, Volume 22 (2023), Issue 2, Page 205 - 211

Article 107(3)(c) TFEU requires a delicate balancing of the positive effects of the aid aiming the development of certain economic activities and the negative effects thereof. The Paks II judgment provides clarifications as to the limits of this balancing process and the European Commission’s obligations to take into account primary and secondary EU laws other than those related to State aid, as well as fundamental goals of the EU Treaties like the protection of environment. The Paks II judgment also confirms that State aid rules are also applicable concerning activities falling under the EURATOM Treaty and clarifies the relationship between State aid and public procurement and an infringement procedure and a State aid procedure. The Paks II judgment also shows that Member States have a hard time with challenging the Commission’s State aid decisions if they rely on an alleged err in law or they attack the Commission’s discretionary powers and the proper application thereof.

Raymond Luja

European State Aid Law Quarterly, Volume 20 (2021), Issue 2, Page 187 - 199

The European Commission proposed a Regulation to deal with the effects of foreign subsidies on the internal market. Undertakings involved in large mergers, acquisitions and upcoming joint ventures or those in the lead of submitting a tender may have to notify foreign subsidies directly or indirectly received in future. The proposal also allows the Commission to launch investigations into other foreign subsidies that distort the internal market. This contribution discusses both the material and formal framework as proposed and takes a first look at parallels and differences with the State aid regime governing intra-EU government subsidies, including guarantees and special tax treatment. The author recommends, inter alia, to clarify the concepts of ‘undertaking’ and ‘interim measures’, to limit notification to selective subsidies in the context of tenders, and to restrict the retroactive effect of the notification requirement in light of the administrative burden involved. Further suggestions to increase consistency and legal certainty have been included as well. As the new obligations imposed on undertakings may affect future public procurement procedures and concentrations, they should be given sufficient attention in time in order not to delay such procedures and to avoid fines or redressive measures. Keywords: foreign subsidies; common commercial policy; redressive measures; mergers; public procurement.

György Wellmann, Anikó Keller

European State Aid Law Quarterly, Volume 17 (2018), Issue 1, Page 130 - 132

Cees Dekker

European State Aid Law Quarterly, Volume 17 (2018), Issue 3, Page 387 - 398

This article examines for which type of transactions the use of a competing, transparent, non-discriminatory and unconditional tender procedure excludes the provision of an advantage and for which type of transactions this is not the case. In answering that question, it will be discussed whether the found distinction can be logically explained and criteria will be developed in accordance with which transactions can be distinguished for which a tender procedure will exclude State aid and for which it will not. Finally, suggestions will be given on how the framework of assessment could be made more consistent. Keywords: Advantage; Public Procurement; SGEI.