Marie-Louise Holle, Grith Skovgaard Ølykke

European State Aid Law Quarterly, Volume 22 (2023), Issue 1, Page 55 - 68

This article explores the tradition of awarding of royal warrants in monarchies in the EU. A royal warrant is an entitlement for an undertaking to utilise the fact that it is supplying a royal court with goods or services in its marketing, as a quality assurance. To determine the legality of awarding royal warrants under EU law, it is examined whether the EU State aid rules apply. To determine whether this is the case, it is decisive whether the monarch is the ‘State’ for the purpose of Article 107(1) TFEU. Therefore, EU law and national public law is analysed. The analysis shows that legal analysis of royal warrants rests on the public/private divide. It is analysed how the various national legal conceptualisations of the monarch fits in the EU concept of State, encompassing all entities which may reasonably be said to act on behalf or under influence of the State. No hard conclusion can be drawn, but it is found that the monarch’s resources are State resources and that the awarding of royal warrants arguably must be considered as imputable to the State. Further, royal warrants confer an economic advantage on beneficiaries, and the monarch does not (formally) receive any (market-like) remuneration. Thus, it is concluded that the award of a royal warrant grants State aid to the benefitting undertaking. Keywords: concept of State; royal warrants; monarch; State resources; economic advantage

Birgit Haslinger, Julia Schiestl

European State Aid Law Quarterly, Volume 22 (2023), Issue 3, Page 343 - 347

Alice Pisapia

European State Aid Law Quarterly, Volume 21 (2022), Issue 2, Page 188 - 193

The 2020 judgment of the Court of Justice of the European Union – C-160/19 P Comune di Milano v Commission – illustrates under which conditions the injection of capital in a company owned and controlled by the State can be considered a measure imputable to the State. The City of Milan (Comune di Milano) tried, until last instance, to defend the injection of public capital in the company SEA Handling SpA which was managing ground services at Milan-Linate and Milan-Malpensa airports. However, the appeal against the judgment of the General Court was supporting the Commission’s interpretation about the qualification of the measure as a State aid unlawfully provided and, in any case, incompatible with the European internal market. The present case note analyses two relevant juridical concepts: the private operator principle as applied by the Court with the private investor test, and the intensity of the judicial review to be applied by the Court during the appeal of a Commission decision in case of complex economic assessments. Finally, given the apical role of the Commission in State aid, the Court cannot replace the assessment carried out by the Commission; it can only revise it if the misapplication of the private investor principle was vitiated by a manifest error.

Caroline Buts, Malgorzata Agnieszka Cyndecka, José Luis Buendía

European State Aid Law Quarterly, Volume 20 (2021), Issue 3, Page 397 - 426

Maria Segura, Alix Mengin

European State Aid Law Quarterly, Volume 20 (2021), Issue 4, Page 572 - 577

In its judgment of 21 October 2020 regarding the request for a preliminary ruling from the French Conseil d’État in Case C-556/19 Eco TLC, the Court of Justice addresses the interpretation of the notion of ‘State resources’ under Article 107, paragraph 1, of the TFEU in the context of an extended producer responsibility scheme established in France. The system requires undertakings producing TLC products (textile, household linen and footwear) to cover the costs for management of waste from these products by paying a contribution to an eco-body, approved by the State which enters into agreements with sorting operators and provides them the necessary financial support for the recycling and treatment of said waste. The judgment confirms the necessity of a detailed and nuanced assessment of the facts of each case when it comes to the analysis of the criterion State resources. The outcome may have been surprising for the referring Court, as well as for practitioners, but follows a coherent approach with previous case law such as the EEG judgment or the landmark case PreussenElektra.

Sylvain Petit

European State Aid Law Quarterly, Volume 20 (2021), Issue 1, Page 139 - 143

On 21 October 2020, the Court of Justice of the European Union (CJEU) handed down a preliminary ruling on the notion of ‘State resources’ regarding the French increased responsibility scheme for producers of waste from textile products, household linen and footwear products (TLC products). The CJEU ruled that a system set up by the State whereby producers of TLC products pay financial contributions to an eco-body which then enters into an agreement with sorting operators and provide them financial support for the recycling and treatment operations of the waste, may not constitute an intervention through State resources. This ruling emphasizes that the notion of ‘public control’ lies in the details: a range of circumstantial evidences is required to determine the extent of the public oversight over the funds channelled between private operators.

Antonios Bouchagiar

European State Aid Law Quarterly, Volume 19 (2020), Issue 1, Page 19 - 28

The case-law on the notion of ‘State resources’ includes several landmark cases, where the Court of Justice has carefully delineated the scope of the Commission’s jurisdiction under EU State aid law. The present article aims at presenting a consistent interpretation of that case-law, starting from the Sloman Neptun judgment in 1993 up to the very recent judgments in EEG and in Achema in 2019. Although an isolated reading of the latter two judgments may give the impression that they contradict each other, the author is of the view that such impression would be erroneous and based on incomplete information. When seen in the full context of the case-law on the notion of ‘State resources’, those two judgments are perfectly complementary. The article concludes by presenting the three alternative situations where State resources would be present according to the case-law as it stands today. Keywords: State resources; Notion of aid; State control.

Daniel Vasbeck

European State Aid Law Quarterly, Volume 19 (2020), Issue 3, Page 378 - 383

This case concerns the interplay between environmental obligations and State aid rules. The General Court upheld the Commission’s finding that Spain had granted State aid to the applicant, a mining operator, through two measures that alleviated its restoration obligations. The first measure related to guarantees covering environmental obligations. Their level was set by the State but the guarantees themselves were issued by a private bank. The General Court, based on an extensive interpretation of the State resources criterion, considered that a State measure reducing such guarantees below the requisite level could create a sufficiently concrete risk of a burden on the State budget. The General Court’s interpretation is significant because it extends to all scenarios where (i) undertakings have to provide a guarantee to cover environmental risks and (ii) the State has a subsidiary obligation to intervene. The second measure related to environmental protection measures adopted by the State in lieu of an undertaking and which went beyond the mandatory level. The judgment highlights the risk that Member States seeking to achieve a higher level of environmental protection may grant an advantage to an undertaking by reducing its future environmental exposure.

Federico Macchi

European State Aid Law Quarterly, Volume 19 (2020), Issue 3, Page 365 - 371

The judgment concerns a case of aid granted by national authorities to airlines, through airports operators which were found to be acting as mere intermediaries. In the reasoning of the Court, the first question to establish the presence of aid in favour of airlines was the presence of State resources and imputability to the State of the transfer made by the airports operators to the airlines. This note aims at providing some thoughts on the application of the criteria on State resources and imputability, and their interaction.

Marianne Clayton, Maria Segura, Lara Manuel

European State Aid Law Quarterly, Volume 19 (2020), Issue 3, Page 372 - 377

On 13 May 2020, the General Court of the EU rendered three judgments on the actions brought by Volotea, easyJet and Germanwings seeking the annulment of Commission Decision SA.33983. In this Decision, the Commission had inter alia concluded that the aid scheme ‘Compensation to Sardinian airports for public service obligations’ entailed the grant of incompatible aid to several airlines that had concluded commercial agreements with airport operators for the development of the island as a tourist destination. The General Court analysed in these judgments each of the criteria of the notion of State aid on its own merits and provided particularly worth-noting reasoning on concepts such as imputability, indirect advantage, the application of the MEOP or the definition of aid scheme.