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Environmental Protection: Contributions Channeled by Eco-Body Should not Involve the Transfer of State Resources · Case C-556/19 ECO TLC · Annotation by Sylvain Petit journal article

Annotation on the Judgment of the Court of Justice of the European Union (First Chamber) of 21 October 2020 in Case C-556/19 ECO TLC contre Ministre d’État, ministre de la Transition écologique et solidaire, Ministre de l’Économie et des Finances

Sylvain Petit

European State Aid Law Quarterly, Volume 20 (2021), Issue 1, Page 139 - 143

On 21 October 2020, the Court of Justice of the European Union (CJEU) handed down a preliminary ruling on the notion of ‘State resources’ regarding the French increased responsibility scheme for producers of waste from textile products, household linen and footwear products (TLC products). The CJEU ruled that a system set up by the State whereby producers of TLC products pay financial contributions to an eco-body which then enters into an agreement with sorting operators and provide them financial support for the recycling and treatment operations of the waste, may not constitute an intervention through State resources. This ruling emphasizes that the notion of ‘public control’ lies in the details: a range of circumstantial evidences is required to determine the extent of the public oversight over the funds channelled between private operators.

The Differentiated Assessment of the Criterion of State Resources: Instances Where ‘Public Control’ Is Decisive · Case C-556/19 Eco TLC · Annotation by Maria Segura and Alix Mengin journal article

Annotation on the Judgment of the Court of Justice of the European Union (First Chamber) of 21 October 2020 in Case C-556/19 Société Eco TLC v Ministre de la Transition écologique et solidaire et Ministre de l’Économie et des Finances

Maria Segura, Alix Mengin

European State Aid Law Quarterly, Volume 20 (2021), Issue 4, Page 572 - 577

In its judgment of 21 October 2020 regarding the request for a preliminary ruling from the French Conseil d’État in Case C-556/19 Eco TLC, the Court of Justice addresses the interpretation of the notion of ‘State resources’ under Article 107, paragraph 1, of the TFEU in the context of an extended producer responsibility scheme established in France. The system requires undertakings producing TLC products (textile, household linen and footwear) to cover the costs for management of waste from these products by paying a contribution to an eco-body, approved by the State which enters into agreements with sorting operators and provides them the necessary financial support for the recycling and treatment of said waste. The judgment confirms the necessity of a detailed and nuanced assessment of the facts of each case when it comes to the analysis of the criterion State resources. The outcome may have been surprising for the referring Court, as well as for practitioners, but follows a coherent approach with previous case law such as the EEG judgment or the landmark case PreussenElektra.

When Do Funds Become State Resources journal article

The Notion of Aid in View of the Recent EEG and Achema Judgments

Antonios Bouchagiar

European State Aid Law Quarterly, Volume 19 (2020), Issue 1, Page 19 - 28

The case-law on the notion of ‘State resources’ includes several landmark cases, where the Court of Justice has carefully delineated the scope of the Commission’s jurisdiction under EU State aid law. The present article aims at presenting a consistent interpretation of that case-law, starting from the Sloman Neptun judgment in 1993 up to the very recent judgments in EEG and in Achema in 2019. Although an isolated reading of the latter two judgments may give the impression that they contradict each other, the author is of the view that such impression would be erroneous and based on incomplete information. When seen in the full context of the case-law on the notion of ‘State resources’, those two judgments are perfectly complementary. The article concludes by presenting the three alternative situations where State resources would be present according to the case-law as it stands today. Keywords: State resources; Notion of aid; State control.

State Measures That Mitigate an Undertaking’s Environmental Obligations · Case T-257/18 Iberpotash · Annotation by Daniel Vasbeck journal article

Annotation on the Judgment of the General Court (Second Chamber) of 16 January 2020 in Case T-257/18 Iberpotash v Commission

Daniel Vasbeck

European State Aid Law Quarterly, Volume 19 (2020), Issue 3, Page 378 - 383

This case concerns the interplay between environmental obligations and State aid rules. The General Court upheld the Commission’s finding that Spain had granted State aid to the applicant, a mining operator, through two measures that alleviated its restoration obligations. The first measure related to guarantees covering environmental obligations. Their level was set by the State but the guarantees themselves were issued by a private bank. The General Court, based on an extensive interpretation of the State resources criterion, considered that a State measure reducing such guarantees below the requisite level could create a sufficiently concrete risk of a burden on the State budget. The General Court’s interpretation is significant because it extends to all scenarios where (i) undertakings have to provide a guarantee to cover environmental risks and (ii) the State has a subsidiary obligation to intervene. The second measure related to environmental protection measures adopted by the State in lieu of an undertaking and which went beyond the mandatory level. The judgment highlights the risk that Member States seeking to achieve a higher level of environmental protection may grant an advantage to an undertaking by reducing its future environmental exposure.

An Illustration of a Textbook Case or Rather of the Principle That the Devil Is in the Detail? · Cases T-607/17 Volotea, T-716/17 Germanwings and T-8/18 easyJet · Annotation by Marianne Clayton, Maria Segura and Lara Manuel journal article

Annotation on the Judgments of the General Court of the European Union (First Chamber) of 13 May 2020 in Cases T-607/17 Volotea v Commission, T-716/17 Germanwings v Commission and T-8/18 easyJet v Commission

Marianne Clayton, Maria Segura, Lara Manuel

European State Aid Law Quarterly, Volume 19 (2020), Issue 3, Page 372 - 377

On 13 May 2020, the General Court of the EU rendered three judgments on the actions brought by Volotea, easyJet and Germanwings seeking the annulment of Commission Decision SA.33983. In this Decision, the Commission had inter alia concluded that the aid scheme ‘Compensation to Sardinian airports for public service obligations’ entailed the grant of incompatible aid to several airlines that had concluded commercial agreements with airport operators for the development of the island as a tourist destination. The General Court analysed in these judgments each of the criteria of the notion of State aid on its own merits and provided particularly worth-noting reasoning on concepts such as imputability, indirect advantage, the application of the MEOP or the definition of aid scheme.

The Concepts of State Resources and Imputability in a Case of Aid Granted Through an Intermediary · Case T-607/17 Volotea · Annotation by Federico Macchi journal article

Annotation of the Judgment of the General Court of the European Union (First Chamber) of 13 May 2020 in Case T-607/17 Volotea v European Commission

Federico Macchi

European State Aid Law Quarterly, Volume 19 (2020), Issue 3, Page 365 - 371

The judgment concerns a case of aid granted by national authorities to airlines, through airports operators which were found to be acting as mere intermediaries. In the reasoning of the Court, the first question to establish the presence of aid in favour of airlines was the presence of State resources and imputability to the State of the transfer made by the airports operators to the airlines. This note aims at providing some thoughts on the application of the criteria on State resources and imputability, and their interaction.

Support for Services in the Lithuanian Electricity Sector · Case C-706/17 Achema · Annotation by Lina Barauskaitė journal article

Annotation on the preliminary ruling of the Court of Justice (Fourth Chamber) of 15 May 2019 in Case C-706/17 AB Achema, AB Orlen Lietuva and AB Lifosa v Valstybinė kainų ir energetikos kontrolės komisija, Lietuvos Respublikos energetikos ministerija, UAB Baltpool

Lina Barauskaitė

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 352 - 358

On 15 May 2019, the Court of Justice of the European Union (the CJEU or the Court) rendered a landmark state aid preliminary ruling where it assessed the Lithuanian public interest services (PIS) support measure provided to certain Lithuanian electricity producers. The measure was never notified to the European Commission and was subject to number of court disputes at the national level. The ruling confirms that the PIS support in the electricity sector constitutes State aid. In particular, the Court confirms that PIS funds can be regarded as State resources, since their life cycle (collection, administration and distribution) are strictly regulated and remains under the control of the Lithuanian State. PIS funds are also intended to finance certain services in the electricity sector, constituting a selective advantage. Moreover, due to characteristics of the Lithuanian electricity market, such as existing interconnectors and European Union electricity market liberalisation, PIS scheme is also liable to affect trade between the Member States and distort competition. Finally, the Court also expressed its doubts whether PIS should be defined as service of general economic interest (SGEI). According to the Court, the requirements for SGEI existence are not met. Keywords: Energy; Electricity; State resources; Imputability; Effect on trade; Distortion of competition; SGEI.

‘State’ Aid or Not – This Is the Question journal article

Philipp Werner, Marcello Caramazza

European State Aid Law Quarterly, Volume 18 (2019), Issue 4, Page 519 - 527

This article provides an overview of the interpretation by the Court of Justice of the European Union (CJEU) of the criterion of ‘State resources’ as an essential element for the definition of State aid provided under Article 107 (1) TFEU. In 2019, the CJEU issued four important judgments (ENEA, EEG, Tercas and Achema) towards clarifying when a measure can or cannot be considered as implemented using State resources, and the elements that the Commission can rely upon to prove the public nature of the resources. In light of earlier Case law in interpreting this criterion (in particular, the landmark Stardust Marine, PreussenElektra, and Pearle Cases), the authors analyse the new judgments and the CJEU’s efforts to strike a balance between the wide interpretation of the concept of ‘State resources’, encompassing public funds and contributions from private actors, and the Commission’s burden of proof in imputing monies to the State.

State Resources Doctrine Rebooted · Case C‑405/16 P Federal Republic of Germany v European Commission (EEG) · Annotation by Theodoros Iliopoulos journal article

Annotation on the Judgment of the Court of Justice (Third Chamber) of 28 March 2019 in Case C‑405/16 P Federal Republic of Germany v European Commission (EEG).

Theodoros G. Iliopoulos

European State Aid Law Quarterly, Volume 18 (2019), Issue 4, Page 555 - 560

The judgment in the Case C-405/16 P has culminated the struggle between Germany and the Commission over the German law for the promotion of electricity from renewable energy sources. Germany has argued that the legislation at issue followed the PreussenElektra model and does not constitute State aid, while the Commission and the General Court have adopted the opposite stance. In March 2019, the Court of Justice judgment in appeal held that there was no State aid involved and set aside the General Court judgment. Thus, a restrictive interpretation of the obfuscated ‘State resources’ criterion was reinstated, which takes State aid law theory back to its roots and makes the PreussenElektra doctrine actual again. The judgment can to a large extent shape how State aid law will apply in the next years and determine the possibility of Member States to circumvent the State aid law restrictions when enacting measures for the promotion of renewable energy sources, but also for other policy objectives. Keywords: State resources criterion; Support schemes for renewable energy sources; Feed-in and premium tariffs; EEG 2012.