Marijana Liszt

European State Aid Law Quarterly, Volume 20 (2021), Issue 4, Page 586 - 589

Floris Fonteyn, Wout De Cock

European State Aid Law Quarterly, Volume 20 (2021), Issue 4, Page 585 - 586

Phedon Nicolaides

European State Aid Law Quarterly, Volume 20 (2021), Issue 3, Page 370 - 383

Now that the UK is no longer a member of the European Union it has to substitute the EU system of State aid control with its own system for the control of subsidies. Brexiters have argued that this presents a unique opportunity to the UK to design a system that is less cumbersome and more effective than that of the EU. This article examines how the draft Subsidy Control Bill intends to address the three problems of the design of institutions responsible for the control of State aid or subsidies; ie the problems of discovery, assessment and enforcement. If finds that, by comparison to the EU system, the proposed UK system seems to grant more leeway to public authorities and to impose fewer formal requirements but also to require assessment of most subsidies by the Competition and Markets Authority (CMA). At the same time, the greater leeway creates more uncertainty about the conformity of subsidies with the various principles laid down in the Subsidy Control Bill. The Bill also leaves several issues unclear, especially with regard to the status of subsidies which are not referred to the CMA or subsidies which are granted contrary to CMA recommendations. The powers of the CMA are certainly more limited than those of the Commission. Keywords: EU-UK Trade and Cooperation Agreement; UK Subsidy Control Bill; State aid regime; Competition and Markets Authority; Competition Appeal Tribunal.

Julie Leroy

European State Aid Law Quarterly, Volume 20 (2021), Issue 3, Page 325 - 336

This article, like my PhD thesis on which it is based, focuses on the recovery of unlawful fiscal State aid in Belgium. Currently, Belgium has no general legal framework for recovery procedures: neither for non-fiscal, nor for fiscal State aid. To the contrary, for the recovery of fiscal State aid, ad hoc-legislation was adopted in the past. On the one hand, the research evaluates if there is a need for a new legal framework for the recovery of unlawful fiscal State aid in Belgium, in the execution of a recovery decision from the European Commission. In order to make this evaluation, the existing ‘tax law route’ and ‘civil law route’ for fiscal recovery procedures are charted. Those routes are tested against ten evaluation criteria, which are deducted from EU law and national law. This evaluation clearly shows that there is a need for a new legal framework for the recovery of unlawful fiscal State aid in Belgium. Consequently, on the other hand, this research makes recommendations regarding the content and design of the new proposed framework. It is, amongst others, recommended to adopt general legislation that applies to all future fiscal recovery procedures in Belgium. Despite its focus on Belgium, several aspects of the research are also interesting for other EU Member States. Keywords: EStAL PhD Award; PhD research; recovery of unlawful (fiscal) State aid; Belgium; current framework; recommendations for new framework.

Anna Nowak-Salles

European State Aid Law Quarterly, Volume 20 (2021), Issue 3, Page 359 - 369

This article, based on a thesis defended at the European University Institute in October 2020, pursues a twofold aim: first, to apply the error framework, which is an economic analysis tool used in competition law, to State aid, and to discover what determines the expected cost of error in this area. Second, to reflect on whether this expected cost might be reduced and to provide ideas where improvements might be sought. For this purpose, it verifies whether errors in State aid assessment at the Commission and the national level are rare, cheap and effectively corrected. On the basis of this analysis, which constitutes an original assessment of the reform of Procedural Regulation and of the GBER, it draws useful conclusions and formulates some recommendations as to how to increase accuracy at a reasonable cost. Keywords: State aid procedure; error in assessment; notification procedure; GBER.

Caroline Buts, Malgorzata Agnieszka Cyndecka, José Luis Buendía

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

Federico Fichera

European State Aid Law Quarterly, Volume 20 (2021), Issue 4, Page 479 - 491

Digital companies, on which contemporary economies are largely based, rely heavily on intangible assets and data processing. They are also able to carry out their activity without a physical presence in the market, which creates a separation between the country where these companies make their profits and the country in which those profits are taxed. It has thus become important to develop an efficient strategy to tax these operators. In 2018, the European Union made an attempt to do so and the Commission introduced a proposal for a directive on the introduction of a Digital Service Tax (DST). Due to lack of the required unanimity in Council, such a proposal was not adopted. In the meantime, however, some Member States have introduced their own national DSTs, clearly inspired by the Commission's proposal. This paper investigates whether such fiscal measures constitute State aid and, in light of recent case-law, it concludes that this is probably not the case. However, in consideration of the peculiarities of such taxes, it is argued that they might still be found to trigger Article 107(1) TFEU in accordance with said jurisprudence. From a broader perspective, it is also argued that the approach used by the CJEU when ruling on fiscal aid should be less formalistic and should give more consideration to the potential effect that these could have on competition within the Internal Market. Keywords: Digital Service Tax; digital taxation; Fiscal State aid; GAFA; selectivity.

Andreas Bartosch

European State Aid Law Quarterly, Volume 20 (2021), Issue 4, Page 507 - 511

A recent line of jurisprudence as to the dichotomy of what is an economic versus a non –economic activity has, bizarrely so, gone completely unnoticed by commentators. This article seizes the opportunity to present the author´s view why, whilst formally repeating an all-too-well-known line of jurisprudence, the way the Courts have carried out their analysis in fact brings quite some degree of common sense when looking at this very analysis. Keywords: jurisprudence; economic advantage; State aid conditions; State control

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.

Anikó Keller, Sam Baldwin

European State Aid Law Quarterly, Volume 19 (2020), Issue 2, Page 235 - 238