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Nürburgring: Limited Scope to Challenge the Competitive Purchase of Assets That Have Received Aid · Cases T-353/15 NeXovation/European Commission and T-373/15 Ja zum Nürburgring/European Commission · Annotation by Irene Moreno-Tapia Rivas and Victoria Riv journal article

Annotation on the Judgments of the General Court (First Chamber, Extended Composition) of 19 June 2019 in Cases T-353/15 NeXovation/ European Commission and T-373/15 Ja zum Nürburgring/European Commission

Irene Moreno-Tapia, Victoria Rivas Santiago

European State Aid Law Quarterly, Volume 19 (2020), Issue 2, Page 220 - 224

Almost a century after the construction of the German racing circuit Nürburgring, economic problems obliged the Land of Rhineland-Palatinate to finance a luxury complex around the race track with the purpose to save the park in economics terms. However, after having received a complaint, the European Commission started an investigation procedure which ended with a Decision on the State aid implemented by Germany for Nürburgring. In the meantime, the Nürburgring assets were sold through a tender process managed by the German Government under the rules agreed with the European Commission and the administrators of the assets. The Commission Decision determined that the measures in favour of the owners of Nürburgring were unlawful and incompatible with the European market rules; in addition, the European Commission decided, first, that any potential recovery of the aid would not concern the buyer of the assets; and, second, that the sale of the assets in the framework of an open, transparent and non-discriminatory tender process did not constitute State aid. The General Court upheld the Decision. Both judgments, T-353/15 and T-373/15 are currently appealed by both complainants before the Court of Justice.





ICSID Trumps State Aid in the UK but Uncertainty Remains Regarding Enforcement of New York Convention Awards in post-Brexit UK journal article

Ana Stanič

European State Aid Law Quarterly, Volume 19 (2020), Issue 2, Page 165 - 171

On 19 February 2020, the UK Supreme Court unanimously held that by virtue of Article 351 TFEU UK’s obligations under the ICSID Convention trump its duty of sincere co-operation under Article 4(3) TFEU to give effect to a State aid decision of the European Commission. In doing so, the UK Supreme Court also made clear that ICSID arbitral awards rendered by arbitral tribunals established pursuant to intra-EU BITs and ECT will be enforced in the UK. Whether in post-Brexit UK enforcement of intra-EU BITs and ECT arbitral awards will be refused on the grounds of being contrary to EU State aid law if sought pursuant to the terms of the New York Convention remains unclear given that State aid currently forms part of the on-going negotiations between the UK and EU regarding their future relations. Keywords: Micula, State aid, ISDS, Achmea, duty of sincere cooperation, public policy


The SURE Initiative, Short-time Work Compensation, and State Aid journal article

Hans Arno Petzold

European State Aid Law Quarterly, Volume 19 (2020), Issue 2, Page 161 - 164

The European Commission has put forward a proposal for a Council regulation aimed at ‘temporary Support to mitigate Unemployment Risks in an Emergency (SURE) following the COVID-19 outbreak’. This is not the place to discuss political or financial implications of the idea of a Basic European Unemployment Insurance. But it gives the opportunity to have a look at options for short-time work compensation, based on a case study of the German model, and the State aid relevance of such compensation. Keywords: COVID-19, SURE Initiative, short-time work Ccmpensation, State aid, selectivity, Germany


The Objectivity of the Concept of Presumed State Aid and The Problem of Deficient Circumstantial Interpretation journal article

Carina Barbosa Gouvêa, Pedro Hermílio Villas Bôas Castelo Branco

European State Aid Law Quarterly, Volume 19 (2020), Issue 1, Page 39 - 43

In its judgment in Case T-791/16 Real Madrid Club de Fútbol v European Commission, the Court of Justice annulled the Commission Decision on aid measure SA.33754. The judgment allowed the rekindling, from the perspective of political science, of the discussions surrounding what represents the semantic definition of State aid, granted by the States or coming from State resources. The innovation brought by the European Commission was to establish a new subcategory for the term - presumed State aid. We discuss whether this type of aid can be fitted into the control by and decisional standards of the European Commission from a purely objective standpoint. The judgment leads us to reflect on the role played by the Commission regarding the evolution of the concept of State aid. However, this evolution, as an update of the directions of Article 107(1) TFEU, must take into consideration a methodology that necessarily goes through a path aimed at the market analysis based on the economic and social context of the State in question. The answer must be in accordance with the objectives and purposes of Community law and this does not represent a literal exegesis of the legal text. Keywords: Presumed State aid; Circumstantial interpretation; Objective and subjective concept of aid.


Implementation of the Green Deal: journal article

Integrating Environmental Protection Requirements into the Design and Assessment of State Aid

Simone Lünenbürger, Clemens Holtmann, Juliette Delarue

European State Aid Law Quarterly, Volume 19 (2020), Issue 4, Page 418 - 429

The Commission has announced its intention to revise a series of State aid rules (GBER and a number of guidelines) in light of the Green Deal by the end of 2021. At the same time, the Commission is examining how competition policy can be more effective to combat climate change and contribute to the protection of the environment. This article demonstrates that environmental protection requirements can and must be integrated into the definition and implementation of the Union's State aid policy, not only when it comes to environmental aid. Article 11 TFEU provides for a legal obligation on the Commission to integrate environmental protection requirements into the definition and implementation of Union policies, including State aid policy. It is shown how this obligation can be integrated into the traditional assessment scheme, notably under Article 107 (3)(c) TFEU and how it can be broken down into concrete compatibility assessment criteria. Keywords: Green Deal; environmental protection; Article 11 TFEU; State aid policy; guidelines


Recovery of Unlawful Aid in Case of Insolvency journal article

Stefania Bello, Germano Guglielmi

European State Aid Law Quarterly, Volume 19 (2020), Issue 4, Page 440 - 451

The provisions on State aid laid down by the TFEU aim at preventing that public intervention in the economy could affect trade and distort competition to an extent contrary to the common interest. To this end, the Commission may order Member States to recover State aid granted in breach of EU law. This article focuses in particular on the specific case of aid recovery from insolvent beneficiaries. The Commission has always taken a very rigorous approach on this matter, requiring the winding-up of the beneficiary and the exit from the market where it is not able to reimburse the total amount of the recovery, regardless of the circumstances of the case. The Recovery Notice adopted in 2019 confirmed the rigid position taken by the Commission towards insolvent beneficiaries. The main purposes of this article are, firstly, to assess the approach adopted by the Commission and, secondly, to investigate the existence of the possibility for the Member State to behave as a private creditor in recovering the unlawful aid, or to suspend the recovery procedure in order to examine a plan to relaunch the activities of the insolvent beneficiary. Keywords: Recovery Notice; unlawful aid; State aid recovery; insolvent beneficiaries