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State Aid for the Banking Sector: Journal Artikel

What has Changed After the New BRRD and SRM Regulation?

Maria Rosaria Miserendino

European State Aid Law Quarterly, Jahrgang 17 (2018), Ausgabe 2, Seite 204 - 211

The object of this work is the analysis of the issues which arose after the coming into force of the Bank Recovery and Resolution Directive (BRRD) and the Single Resolution Mechanism Regulation (SRM); in particular, the (new) role of the European Commission (EC) on State aid for the Banking Sector. This work analyses the complex procedure of resolution created after the Single Resolution Mechanism Regulation and the cooperation between the Commission and the SRB on State Aid in that procedure, with a focus on precautionary recapitalisation.Keywords: State aid; Single Resolution Mechanism Regulation; BRRD; Resolution procedure; Precautionary recapitalisation.

Whether or Not to Bite the Apple: Some Implications of the August 2016 Commission Decision on Irish Tax Benefits for Apple Journal Artikel

Eugene Stuart

European State Aid Law Quarterly, Jahrgang 16 (2017), Ausgabe 2, Seite 209 - 232

Every State aid regulatory decision in the EU has political, economic and administrative dimensions in addition to the application of legal rules and principles. The Apple Decision of August 2016, imposing a record recovery order against Ireland, is no exception. In the context of the use of the EU State aid rules to promote fair tax competition, and contribute indirectly to failed tax harmonisation, this article looks in detail at the Apple Decision together with its implications in the context of EU State aid and taxation policy and some of the sensitive political repercussions arising from the Decision. State aid in the EU via tax measures continues to represent about one-third of all State aid. Accordingly, it is also topical and useful to explore the logic and motivation of the European Commission in treating tax measures as liable to give rise to State aid concerns (and as priority and major cases) in the context of the Apple Decision and the soft law measures, Commission decisions and case law which preceded it. The case is currently on appeal and, although the Irish arguments do not seem strong at first sight, on several points the position of the Apple entities and of the Irish tax authorities will need to be analysed in detail by the Court in response to the Irish arguments and there is likely to be some scope for certain Commission positions in the case to be over-turned on points of fact, if further proven in the appeal. In reviewing the Apple Decision, the EU Courts will soon have an important (or even historic) opportunity to decide whether or not to further support the legality of the Commission’s continuing expansion of its State aid remit in regard to allegedly unfair tax measures. Keywords: Tax Rulings; Unfair Tax Competition; Tax Harmonisation; Arm’s Length Principle; Record State Aid Recovery.

Manufacturing in Small Peripheral Island States: Where is the Level Playing Field? Journal Artikel

Caroline Buts, Phedon Nicolaides

European State Aid Law Quarterly, Jahrgang 16 (2017), Ausgabe 2, Seite 272 - 275

While many islands can be attractive tourist destinations, other parts of the economy often face serious challenges that are the direct result of natural and permanent handicaps. Small islands encounter difficulties in attracting and maintaining manufacturing activities. Additional transport costs as well as the absence of economies of scale and low connectivity can result in investment decisions on the mainland, rather than the island. Multiple policies exist to help islands balance out the disadvantage of being remote, small or sparsely populated. Nevertheless, the State aid rules treat small and remote islands differently, depending on whether they are a region or a Member State. After briefly reviewing the main difficulties encountered by islands, we study the case of Malta. Next, the relevant State aid rules are evaluated, revealing inconsistencies and the need for revisions with important consequences for Malta and Cyprus. Keywords: Regional State Aid; Peripheral Islands; Island States; Transport Costs; Industrial Base.

The ‘Effect on Trade between the Member States’ Criterion: Is It the Right Criterion by Which the Commission’s Workload Can Be Managed? Journal Artikel

Cees Dekker

European State Aid Law Quarterly, Jahrgang 16 (2017), Ausgabe 2, Seite 154 - 163

On 29 April 2015, the European Commission decided on several notified measures, ruling that in none of those cases State aid was involved because, as the accompanying press release stated, they were unlikely to have a significant effect on trade between Member States. According to the press release, the decisions give additional guidance on how to determine which cases should be assessed by the Commission and which should not, to allow the Commission to focus on cases with a larger impact on the internal market. A couple of decisions in 2016 followed the same line of reasoning. This article discusses the question of how these decisions relate to the Court’s case law and the Commission’s own practice regarding the criterion ‘effect on trade between Member States’ laid down in Article 107(1) TFEU. It will also explore to what extent these decisions give actual clarity on the application of this criterion and if there is a better alternative to reduce the workload of the national authorities and the Commission. Keywords: Interstate Trade; De Minimis; Appreciable Effect; Notice on the Notion of State Aid.

ARTICLES - STATE AID AND NATIONAL JURISDICTIONS ∙ Taxation and Limits to State Aid: the Case Law of The CJEU on Regional Selectivity and Its Application by Spanish Courts Journal Artikel

Saturnina Moreno González

European State Aid Law Quarterly, Jahrgang 16 (2017), Ausgabe 3, Seite 340 - 353

This work illustrates the Commission’s initial position and the evolution of EU case law regarding “regional, geographical or territorial” selectivity in tax matters, the issues raised by said case law and the interpretation and application made by Spanish judicial courts in this respect. Keywords: Regional Selectivity; Tax Benefit; Symmetrical and Asymmetrical Distribution of Tax Competences; Right of Proof.

ARTICLES - STATE AID AND NATIONAL JURISDICTIONS ∙ Damages Claims Based on State Aid Law Infringements Journal Artikel

Joanna Goyder, Margot Dons

European State Aid Law Quarterly, Jahrgang 16 (2017), Ausgabe 3, Seite 418 - 430

Damages claims based on State aid law infringements may be brought in a number of situations. There is an EU law cause of action, and sometimes also a national law basis, for claims by competitors of the aid recipient, or by third parties, against the Member State or other body which granted the aid. Competitors may also claim damages from the beneficiary, but such claims can only be brought if national law provides a cause of action. Finally, the recipient itself may claim damages from the granting Member State or other body, but an EU law cause of action will normally not be available, so such a claim will also generally have to be based on national law. All these types of damages claim are rare in practice, and even more rarely successful. The main reason for this appears to be the difficulty for claimants to prove causation and to quantify their loss. Keywords: Damages Claims; Infringements; Enforcement Notice; National Courts.

ARTICLES - STATE AID AND NATIONAL JURISDICTIONS ∙ State Aid Assessment: What National Courts Can Do and What They Must Do Journal Artikel

Jose Luis Buendía Sierra, Miguel Ángel Bolsa Ferruz

European State Aid Law Quarterly, Jahrgang 16 (2017), Ausgabe 3, Seite 408 - 417

The article explores the powers and duties of national courts when they enforce EU State aid law, particularly when, by virtue of the stand-still obligation pursuant to Article 108(3) of the Treaty on the Functioning of the European Union, they are faced with the assessment of whether a national measure constitutes illegal State aid. It also analyses a number of mechanisms or tools available in this context for national courts to cooperate with the European Commission and the European Courts, with the primary objective of preventing contradictory decisions or judgments rendered by different authorities at national and EU level. In this vein, the article also critically reviews the 2009 Commission Notice on the enforcement of State aid by national courts, which in the authors’ view sometimes goes beyond what is required by the applicable case law. The scope of measures available for national judges is certainly much wider than the scope of measures imposed on national judges. Keywords: Powers and Duties of National Courts; 2009 Commission Notice; State Aid Enforcement.

ARTICLES - STATE AID AND NATIONAL JURISDICTIONS ∙ How to Ensure State Aid Compliance at Local and Regional Level? Journal Artikel

Christian Berger

European State Aid Law Quarterly, Jahrgang 16 (2017), Ausgabe 3, Seite 476 - 481

It is the Member State which is responsible for all State aid granted by authorities on its territory. At the same time, it might not even be aware of aid which may have been granted by a regional or local authority. Local and regional authorities are like the Member State itself active in many fields, both economic and non-economic and sometimes pursue an interventionist aid granting policy on its local territory. It is therefore paramount that the State establishes structures which make sure those local and regional authorities do not grant illegal aid. Member States have adopted different approaches towards this. Most rely on soft measures such as awareness-raising and training, while other have coupled this with more organised enforcement structures or hard legislation. Both central and more federative or devolved Member States face the same problem; the latter has just moved the enforcement responsibility to a different level of government. But in the end, the Member State’s fundamental responsibility remains. Keywords: State Aid Compliance; Local and Regional Level; Enforcement.