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Revisiting Some Fundamentals of Fiscal Selectivity: The ANGED Case  ∙ Case C-233/16 ANGED ∙ Annotation  by Juan Jorge Piernas López Journal Artikel

Annotation on the Judgment of the General Court of the European Union (First Chamber) of 26 April 2018 in Case C-233/16 Asociación Nacional de Grandes Empresas de Distribución (ANGED) v Generalitat de Catalunya

Juan Jorge Piernas López

European State Aid Law Quarterly, Jahrgang 17 (2018), Ausgabe 2, Seite 274 - 281

Keywords: Regional tax on large retail establishments; Freedom of establishment; Protection of the environment and town and country planning; State aid; Selective measure; Letter from the Commission stating that no further action will be taken on a complaint; Existing aid.

United Textiles: A Missed Opportunity  ∙ Case C-363/16 European Commission v Greece ∙ Annotation  by Wout De Cock and Julie Leroy Journal Artikel

Annotation on the Judgment of the Court of Justice of the European Union (First Chamber) of 17 January 2018 in Case C-363/16 European Commission v Greece

Wout De Cock, Julie Leroy

European State Aid Law Quarterly, Jahrgang 17 (2018), Ausgabe 2, Seite 298 - 304

It is well established that the financial situation of an (insolvent) aid beneficiary does not lead, in principle, to an absolute impossibility to recover unlawful and incompatible State aid. In the annotated case, a Member State argued that it should be entitled to suspend the insolvency proceedings in order to examine the possible relaunch of the insolvent beneficiary’s activities. In this annotation, we discuss the findings of the European Court of Justice with regard to this question and argue that the Court’s findings remain vague and unclear. Furthermore, we discuss the relevant date to assess the failure to recover aid from an insolvent beneficiary and the duty of loyal cooperation between Member States and the Commission. In general, it is argued that the judgment is, in contrast to (parts of) the Opinion of the Advocate General, a mere confirmation of former case law and somewhat disappointing.Keywords: Recovery of unlawful State aid; Financial situation (insolvent) beneficiary; Possibility to suspend recovery proceedings and relaunch activities - Article 108(2)(2) TFEU; Date for assessing failure to recover; Duty of loyal cooperation

Public Aid to Airports as a Compensation for the Provision of Services of General Economic Interest Journal Artikel

Michele Giannino, Federich Romby

European State Aid Law Quarterly, Jahrgang 17 (2018), Ausgabe 3, Seite 338 - 352

The purpose of this article is to provide a comprehensive review of the European Commission’s approach in assessing whether compensation awarded to airports for the provision of Services of General Economic Interest (SGEIs) complies with the EU State aid rules. The article analyses the defensive strategies open for national authorities to claim that airports public service compensation packages are compatible with the internal market. In that regard, the article considers the Altmark doctrine and the compatibility conditions for the application of the SGEI exception in Article 106 TFEU. Then it critically compares the strong and weak points of each of these strategies and also dwells on which factors national authorities have to adduce to prove the compatibility of airport aid. Bearing in mind the difficulties for national authorities to satisfy all the conditions for the application of the Altmark doctrine, the article suggests that the SGEI exception should be the optimal strategy to obtain regulatory clearance of public service compensation to airport.

State Aid in the Ports Sector: a Blessing or a Curse? Journal Artikel

Recent European Policy Initiatives and Measures from a Dutch Perspective.

Sarah Beeston, Pim Jansen, Kiek Brink

European State Aid Law Quarterly, Jahrgang 17 (2018), Ausgabe 3, Seite 328 - 337

The European Commission sees the ports sector as a driving force for economic growth and regional development in Europe. It has recently developed various policy initiatives in this sector and taken measures whereby State aid control forms the key element. The Commission has opted for an approach based on two interlinked pillars. First, the Commission intends to create a (more) level playing field among European Union Member States, by using State aid rules to curb tax benefits for (public) companies in the ports sector. Second, further to the State Aid Modernisation Programme, the Commission is, to an increasing extent, pursuing an active European economic policy in the ports sector by means of exemptions from the prohibition of State aid. As a result, certain aid measures targeting market failures and objectives of a common European interest are permissible. In this article we will provide an analysis of recent developments and place them in their legal and policy-related context. We will specifically discuss the impact of these developments on seaports in the Netherlands.

Is there a Need for a New Concept of ‘Ex-ante Creditor’? Journal Artikel

Consequences of the FIH Holdings Judgment

Phedon Nicolaides

European State Aid Law Quarterly, Jahrgang 17 (2018), Ausgabe 3, Seite 368 - 374

The amount of State aid in a loan or guarantee is not necessarily equal to the principal of the loan or the guaranteed amount. Moreover, the liability of the State and the risk borne by the State depend on the rights or collateral that the State secures before it grants a loan or guarantee. For this reason, State aid law needs a third concept to describe the behaviour of the State apart from that of ‘public authority’ or ‘private investor’. That third concept is labelled here as ‘ex-ante creditor’. It applies to those sums over which the State can exercise a claim without expecting ex-ante to receive a profit. Past loans or guarantees that contain State aid should be ignored, as prescribed by the Court of Justice, only when the State has no prospect of recovering any amount that is due to it or when it has no claim to exercise against the borrower who is the aid recipient. Keywords: Private investor; Private creditor; Loans; Guarantees; Past State aid.

Ex Post State Aid Evaluation in Environmental Aid Journal Artikel

Hans Friederiszick, Ela Głowicka, Linda Gratz, Simone Lünenbürger, Andreas Rosenfeld

European State Aid Law Quarterly, Jahrgang 17 (2018), Ausgabe 4, Seite 509 - 524

The obligation to carry out an ex post evaluation of certain State aid measures was introduced in the European Union in 2014. This obligation represents an important element of the broader State Aid Modernisation initiative of DG Competition. In this article, we offer guidance, both from a legal and an economic perspective, on when an ex post evaluation is required, which methods are available and which methods are actually considered by Member States. More specifically, we propose a ‘traffic light system’, supporting a self-assessment of whether an ex post evaluation is required for a specific measure or not. Furthermore, we review the 24 evaluation plans which were approved by the European Commission by August 2018, with respect to the proposed approaches to the measurement of direct and indirect effects, appropriateness and proportionality. We find that the most common method considered by Member States in their evaluation plans is the econometric estimation of differences-in-differences. Keywords: State aid ex post evaluation; Environmental aid; Econometric estimation methods; Evaluation plans.

Ex Post Assessment of the Impact of State Aid on Competition Journal Artikel

Nicole Robins, Hannes Geldof

European State Aid Law Quarterly, Jahrgang 17 (2018), Ausgabe 4, Seite 494 - 508

The EU’s State aid modernisation reforms introduced a role for ex post evaluations of aid schemes. State aid evaluation provides an opportunity to continuously improve the effectiveness and efficiency of aid schemes to ensure that their positive impact outweighs possible distortions to competition and trade. Traditionally, the role for an extensive analysis of the impact of aid on competition has been limited compared with other areas of competition policy, such as merger control, and assessments of anticompetitive agreements or abuse of dominance. The European Commission therefore asked Oxera to develop an economic framework that can be used to assess the competitive effects of aid, and to gain further insights into the actual impact of aid on competition. Oxera’s study may have significant implications for future State aid control. This article discusses the economic framework developed by Oxera as well as insights from Oxera’s study into the main drivers of the likely impact of aid on competition.

Monitoring of State Aid Journal Artikel

From Ex Ante to Ex Post Control

María Muñoz de Juan

European State Aid Law Quarterly, Jahrgang 17 (2018), Ausgabe 4, Seite 483 - 493

Ex post monitoring is a counterpart of the State aid decentralisation process and, as such, is a cornerstone of the current State aid control system. The application of State aid rules is being increasingly decentralised thanks to the significant use of the block exemption Regulations by the Member States. However, this does not mean that the Commission is giving up its powers and obligations under the Treaty. On the contrary, it closely follows — through ex post controls — how State aid measures are implemented by the Member States. This Commission-level monitoring exercise aims to correct the detected irregularities both for the past and for the future and helps to improve State aid rules. It has a measurable deterrent effect. Keywords: State aid; enforcement; monitoring; ex post control; SAM; decentralisation; block exemption regulation.

The UK Experience of State Aid Evaluation Journal Artikel

What are the Challenges, and what are the Opportunities?

Nick Wright

European State Aid Law Quarterly, Jahrgang 17 (2018), Ausgabe 4, Seite 525 - 533

The UK has long regarded evaluation as a fundamental part of the policy development cycle and has had a broadly positive experience in meeting the new State aid evaluation requirements. This article sets out the UK’s approach to policy evaluations and considers the opportunity that the State aid requirements present to improve policies, but also notes that there can be a challenge in applying the Commission’s favoured counterfactual methodology, which might not be appropriate in all cases. The article recommends that the Commission continues to work with Member States to develop good practice, including accepting alternative methodologies when they are robust. This will help to ensure that the State aid evaluation requirements support both the effective delivery of policy, and support State aid compliance. The article concludes that, while there is always scope for improvement in the Commission’s approach, the requirements provide a real incentive for public authorities to accurately measure the effectiveness of State aid interventions in markets. This in turn facilitates evidence-based policy making, which should lead to better targeted measures that generate better policy outcomes. Keywords: Evaluation methodologies; State aid Modernisation; Effectiveness of aid.

State Aid Evaluation Journal Artikel

State of Play and Ways Forward

Barbara Brandtner, Daniele Vidoni

European State Aid Law Quarterly, Jahrgang 17 (2018), Ausgabe 4, Seite 475 - 482

The Commission requirement concerning the evaluation of State aid schemes is one of the pillars of the State Aid Modernisation (SAM) reform of 2014. The aim of the evaluations conducted under State aid rules is to provide evidence on both the direct impact of the aid on its beneficiaries and on its indirect impacts, positive and negative, as well as on the proportionality and appropriateness of the aid measure. This article provides an account of the state of play in the evaluation of State aid schemes. To this end, we analyse the legal framework of the evaluation requirements as outlined under the General Block Exemption Regulation and under different State aid guidelines, and synthesise the characteristics of the current 45 evaluation plans, and of the Commission decisions approving them. Finally we discuss the lessons learnt from the first final evaluation reports submitted and reflect on challenges ahead. Keywords: State aid Modernisation; State aid control; Evaluation plan.