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Ex Post State Aid Evaluation in Environmental Aid journal article

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

European State Aid Law Quarterly, Volume 17 (2018), Issue 4, Page 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.



Is There a Role for Economic Analysis When Deciding on State Aid to Public Broadcasters? journal article

Caroline Buts, Mychal Langenus, Karen Donders

European State Aid Law Quarterly, Volume 16 (2017), Issue 4, Page 537 - 558

By means of text analysis, this article examines the use of economic concepts and tools in State aid decisions regarding public broadcasters. We find that broad and general concepts are most frequently used and that more specific economic terms that can be found in the Broadcasting Communication surface rather seldomly in the public version of decision texts. Furthermore, we do not observe a substantial difference between the use of these terms before and after the adoption of the v2009 Broadcasting Communication suggesting that economic concepts are not more frequently used in recent years. We believe that economic analysis could bring additional clarity and support in several of the studied decisions, especially in cases where, for example, it is quite debatable which tasks fall under a public service obligation and which do not. Economic analysis would foster the evolution to a stricter and more rational State aid control in this exceptional sector preventing potential spillover-effects of aid into new activities. Keywords: State Aid; Media; Public Service Broadcasting; Economic Analysis.



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

Eugene Stuart

European State Aid Law Quarterly, Volume 16 (2017), Issue 2, Page 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 article

Caroline Buts, Phedon Nicolaides

European State Aid Law Quarterly, Volume 16 (2017), Issue 2, Page 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.


Micula and Others v Romania   ∙ [2017] EWHC 31 (Comm) ∙ Annotation by Kai Struckmann, Genevra Forwood, Aqeel Kadri and Adam Wallin journal article

Annotation on the Judgment of the High Court of England and Wales of 20 January 2017 in Micula and Others v Romania [2017] EWHC 31 (Comm)

Kai Struckmann, Genevra Forwood, Aqeel Kadri, Adam Wallin

European State Aid Law Quarterly, Volume 16 (2017), Issue 2, Page 316 - 321

While the General Court considers the validity of the European Commission’s decision in the Micula case finding that “the payment of the compensation awarded by” an ICSID arbitral tribunal constitutes incompatible State aid, national courts in the EU (and the US) are also wrestling with different, but related, issues in proceedings to enforce the underlying arbitral award. The key question in these proceedings is whether the Commission Decision stands in the way of enforcement in a (Member) State which is not the addressee of the decision. In the judgment discussed here, the High Court found that the arbitral award constituted res judicata and that it had not been satisfied. However, the High Court also considered that it could not decide a number of issues (including the interpretation of the CJEU’s jurisprudence in Kapferer, the application of Article 351 TFEU and the concept of imputability) without risking a conflict with questions currently pending before the General Court. Consequently the High Court decided to stay the enforcement proceedings, pending the outcome of annulment action before the General Court. The High Court reached few firm conclusions. Underlying this case is the tension between international obligations owed under the multilateral ICSID Convention and the EU Treaties, and which take precedence. One of the most striking features of the High Court judgment is its acceptance of the contentions of Romania and the Commission that essentially any substantive finding of EU law would give rise to a significant risk of conflict with ongoing proceedings in the EU Courts to annul the Final Decision. Keywords: State Aid and Arbitration; Article 351 TFEU; Res Judicata; Article 4 TEU – Duty of Sincere Cooperation.