Marcus Klamert, Franz A.M. Koppensteiner

European State Aid Law Quarterly, Volume 22 (2023), Issue 3, Page 234 - 241

This article discusses two seemingly contradictory strands of case law by the EU Courts: one finding that a State aid procedure may never lead to a result in contradiction to other rules and principles of EU law; the other holding that only such violations of other EU law should be considered by the European Commission that are intricately linked to the State aid measure itself. This article examines how this case law relates to general EU law principles such as consistency and loyalty and a synthesis is proposed based on the recent Grand Chamber judgment in Braesch. This article submits that State aid law is not a self-contained regime within EU law allowing the European Commission to ignore the requirements of other EU law. Keywords: modalities of State aid; self-contained regime; consistency; loyalty; legal certainty; power plant

Tania Pantazi

European State Aid Law Quarterly, Volume 22 (2023), Issue 4, Page 414 - 419

State aid to European airlines during the Covid-19 crisis has been the object of several judgments of the General Court since 2021. This case marks a turn in previous case law, as it annuls the approval of the Commission for multiple reasons of substance relating to misapplication of the Covid State Aid Temporary Framework. The measure at issue was a recapitalisation scheme for one of Europe’s largest airline groups, Deutsche Lufthansa. The decision may affect other pending cases on measures for European airlines.

Julie Leroy

European State Aid Law Quarterly, Volume 21 (2022), Issue 4, Page 384 - 396

A Member State which violates the standstill-obligation under Article 108(3) TFEU is not directly held responsible for his failure to comply with his obligations under EU law, as it is the aid beneficiary who will be obliged to repay the unlawful (and incompatible) State aid. This contribution evaluates if the aid beneficiary can nevertheless hold the Member State somehow responsible, through a damage claim based on the latter’s extra-contractual liability for the violation of EU law. The Belgian case study shows that such a claim can be successful, as the conditions of Articles 1382-1383 Old Civil Code might be fulfilled. However, the aid beneficiary is in a difficult position. One the one hand, this undertaking bears the ‘risk of proof’. On the other hand, a full compensation will be rare as, amongst others, the aid beneficiary’s own fault might lead to a liability apportionment. Finally, the obligation to repay the unlawful State aid (with interest) as such will never qualify as a damage that is eligible for a compensation, as this would undermine the effectiveness of EU law. Keywords: Article 108(3) TFEU; standstill-obligation; recovery of unlawful (and incompatible) State aid; liability of Member States; Belgium

Antonis Metaxas

European State Aid Law Quarterly, Volume 21 (2022), Issue 1, Page 43 - 53

EU State aid rules, as a normative framework for ensuring and preserving undistorted competition in an equitable Common Market, traditionally constitute fundamental provisions of the EU legal order. Within this framework, the constructive cooperation of the Member State concerned with the European Commission is important when assessing the compatibility of an aid measure with the internal market. Notwithstanding the bilateral character of the control procedure, the participation of interested parties enables the Commission to get a better insight regarding the contested aid measure in order to conclude whether the latter is aligned with the Union’s interests and policies. In a dynamic global environment, these interests and prevailing priorities are constantly redefined (climate change is a prominent example). To the extent that this broader, dynamic scope of EU State aid control is accepted, the question arises if State aid measures adopted by a Member State for supporting a given activity shall be assessed not only on the grounds provided for by the Member State concerned, the recipient of the aid or its direct competitors. In this context, the author claims that aspects of procedural efficiency must be held in balance with the reality of normative interdependence and the necessity of compatibility among EU policies. Procedurally, the question now arises if and to which extent the interested party concept must be broadened so that, for example, organisations of the civil society obtain a ‘locus standi’ in EU State aid control administrative procedures as well as in respective judicial proceedings before EU Courts. Keywords: interested party; State aid control procedure; NGO; Aarhus Convention; Aarhus Regulation

Vasiliki Dolka

European State Aid Law Quarterly, Volume 21 (2022), Issue 1, Page 87 - 92

On 25 January 2022, the Court of Justice (CJ) overturned the judgment of the General Court (GC) that had annulled a 2015 European Commission (Commission) State aid decision declaring the payment of compensation granted by an arbitral award for violation of the 2003 Romania-Sweden Bilateral Investment Treaty, as unlawful and incompatible State aid. The GC annulled the Commission Decision for lack of competence ratione temporis to assess the measure as it considered the aid to have been granted before Romania’s accession to the EU. To the contrary, the CJ considers that the critical date at which the right to receive the aid is conferred to the beneficiary coincides with the granting of the right to compensation. On this ground, the CJ reinstates the Commission’s competence to review the aid. It also confirms the relevance of the Achmea ruling, by concluding that any consent that may have been given by an EU Member State to participate in international investment arbitration proceedings before its accession to the EU lacks any legal force post accession. The CJ has remanded the case back to the GC to decide on the merits.

Steven Verschuur, Cecilia Sbrolli

European State Aid Law Quarterly, Volume 20 (2021), Issue 1, Page 41 - 50

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 regional State aid (2014 Regional Guidelines), in force until the end of 2021, constitute the legal framework in force to assess Regional State aid. The European Commission has already published draft Guidelines to replace the 2014 Guidelines (Draft Regional Guidelines) to bring the text in line with the European Green Deal. This paper is the second 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. The first article provided an introduction to the European Green Deal and its interaction with the guidelines for State aid for environmental protection and energy (EEAG). This second article will focus on the Just Transition Mechanism (JTM) and its interplay with the Draft Regional Guidelines. Keywords: European Green Deal; regional State aid; Just Transition; outermost territories; financing the transition

Wout De Cock

European State Aid Law Quarterly, Volume 20 (2021), Issue 1, Page 180 - 183

Marco Schito

European State Aid Law Quarterly, Volume 20 (2021), Issue 2, Page 200 - 216

Scholars have long wondered whether, following the increasing degree of institutionalisation of State aid control, State aid policies are converging towards a common European model. The issue of convergence has come to the forefront in particular following the Eastern enlargement, which welcomed several countries with a very different historical legacy. The present article thus looks at the differences in State aid allocations between old and new Member States to understand whether, in the over fifteen years since the enlargement, such differences have been overcome. By means of statistical analysis, it argues that differences in aid levels between the two blocs persist both in terms of overall allocations and in expenditures by objectives. Drawing from the literature on comparative political economy, it further explores a potential explanation as to why intra-bloc differences among Central Eastern European countries also continue to this day. Keywords: Central Eastern European Countries; CEEC; comparative capitalism; statistical analysis; State aid politics.

European State Aid Law Quarterly, Volume 20 (2021), Issue 2, Page 298 - 299

Juan Jorge Piernas López

European State Aid Law Quarterly, Volume 20 (2021), Issue 2, Page 313 - 314