Kiran Desai

European State Aid Law Quarterly, Volume 19 (2020), Issue 4, Page 536 - 542

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

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

Stig Eidissen

European State Aid Law Quarterly, Volume 19 (2020), Issue 4, Page 452 - 463

According to long-standing Commission practice, State aid must aim at or contribute to an objective of common interest to qualify as compatible with the internal market. In the recent judgment Hinkley Point C, the Court of Justice rejected the pursuit of an objective of common interest as a condition for compatibility pursuant to Article 107(3)(c) TFEU. This article takes a closer look at the origin and content of the common interest condition. Further, it discusses whether the Hinkley judgment establishes a precedent to reject a common interest condition entirely, and the possible consequences of such a precedent for State aid law and policy going forward. Keywords: State aid; compatibility; compensatory justification; common interest; judicial review

Dragan Gajin

European State Aid Law Quarterly, Volume 18 (2019), Issue 4, Page 575 - 577

Ilkka Aalto-Setälä, Sami Hartikainen

European State Aid Law Quarterly, Volume 18 (2019), Issue 4, Page 573 - 574

Caroline Buts, Phedon Nicolaides, Hans Pirlet

European State Aid Law Quarterly, Volume 18 (2019), Issue 4, Page 489 - 509

Despite the improvement of the State aid rules on Research, Development and Innovation (RDI) during the past decade, stakeholders have claimed that the current rules are at points ambiguous, which results in a negative impact on innovation. By means of an exploratory case study and participatory action research, this article aims to identify the ambiguities in the RDI rules. While the rules are detailed and overall well explained, we detect three themes where ambiguities arise, ie non-economic activities, price calculation of goods or services provided by research organisations, and ancillary activities of research organisations together with the 20% threshold. For each of these categories, we discuss what constitutes a ‘safe’ interpretation of the concepts involved. This entails an interpretation that is in line with the case law as well as with the spirit of State aid control. Where appropriate and possible, we provide examples as well as suggestions for their practical implementation. Next to providing guidance regarding the detected ambiguities, this article aspires a contribution to the forthcoming revision of the State aid rules for RDI. Keywords: State aid policy; Research, Development and Innovation; GBER; RDI Framework.

Guilherme Galdino

European State Aid Law Quarterly, Volume 18 (2019), Issue 4, Page 510 - 518

Given that special charges have not been addressed properly, one intends to answer whether it is better to consider the aid as the non-imposition or the tax exemption, or as the tax itself. To address this issue, the cumulative application of free movement of rights and State aid rules is examined, mainly, in light of the possible consequences. Not only is the concept of negative State aid discussed, but also the legal reasoning and consequences appropriate to its application are analysed. The author argues that State aid rules should, by analogy, be applied to special charges, considering the tax itself the aid because: the selective analysis is maintained; it is possible to define an appropriate remedy; and it can be applied to situations involving also free movement rights. Keywords: Special Charges; Negative State aid; Asymmetrical taxes.

Maria Segura, Egill Olafsson, Marianne Clayton

European State Aid Law Quarterly, Volume 18 (2019), Issue 1, Page 3 - 14

One of the many and still unresolved questions raised by the discussions surrounding Brexit is that of its implications on State aid rules. The consequences for the UK and for both the EU and the European Economic Area are still unknown. The options are diverse and still open to much speculation. In this article, we will focus on the EEA model. Because it is not that well-known, the scope of the EEA agreement and the way it functions will firstly be presented. Indeed, some specificities of the EEA framework, amongst which the principle of homogeneity, deserve explanations as a cornerstone for the application of State aid rules within the EU and the EEA. Finally, the actual different options regarding State aid control post-Brexit within the UK, EU and EEA will be discussed. To conclude, attention will be devoted to the concerns regarding the continuation of the EEA Agreement as it stands and the future homogeneous application of State aid rules. Keywords: State aid control; Brexit; Homogeneity principle.

Jan Bonhage

European State Aid Law Quarterly, Volume 18 (2019), Issue 1, Page 29 - 36

Taking into account previous State aid in the MEOP assessment requires an in-depth analysis of the specifics of the individual case. The mere fact that economic interests derive from previous State aid does not rule out their relevance in the assessment of the economic rationality of further financial measures. State aid aims at a comprehensive analysis of all relevant factors at the time of the funding decision. Both the purpose of the MEOP and previous European case law support such comprehensive substantive approach in the MEOP State aid assessment of subsequent financial measures. In light of the rationale of the MEOP and previous decisions, the CJEU’s rather formal approach in the FIH case is not convincing. The comprehensive substantive approach of ING Groep, also concerning the relevance of previous State aid in the assessment of subsequent public measures, more adequately reflects all aspects that a private investor would take into account in a comparable situation. Keywords: FIH; ING Groep; Land Burgenland; MEOP; previous State aid; subsequent financial measures; substantive approach; comprehensive assessment; formal approach; public authority.