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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 European Green Deal and State Aid: journal article

Regions, State Aid and the Just Transition

Steven Verschuur, Cecilia Sbrolli

European State Aid Law Quarterly, Volume 20 (2021), Issue 1, Page 41 - 50

The European Green Deal is the prelude and the foundation of a daunting, but necessary, environmental-centric industrial revolution. EU legislation has obviously dealt with environmental policies in the past, but the European Green Deal is a far-reaching project that will require unprecedented investments. The transition envisioned in the European Green Deal will also require amendments to a wide variety of existing EU legislation and policies, including in the field of State aid. The guidelines on regional State aid (2014 Regional Guidelines), in force until the end of 2021, constitute the legal framework in force to assess Regional State aid. The European Commission has already published draft Guidelines to replace the 2014 Guidelines (Draft Regional Guidelines) to bring the text in line with the European Green Deal. This paper is the second of a series that will discuss the interplay between existing State aid rules and policy on the one hand and the European Green Deal on the other. The first article provided an introduction to the European Green Deal and its interaction with the guidelines for State aid for environmental protection and energy (EEAG). This second article will focus on the Just Transition Mechanism (JTM) and its interplay with the Draft Regional Guidelines. Keywords: European Green Deal; regional State aid; Just Transition; outermost territories; financing the transition

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.

The Objectivity of the Concept of Presumed State Aid and The Problem of Deficient Circumstantial Interpretation journal article

Carina Barbosa Gouvêa, Pedro Hermílio Villas Bôas Castelo Branco

European State Aid Law Quarterly, Volume 19 (2020), Issue 1, Page 39 - 43

In its judgment in Case T-791/16 Real Madrid Club de Fútbol v European Commission, the Court of Justice annulled the Commission Decision on aid measure SA.33754. The judgment allowed the rekindling, from the perspective of political science, of the discussions surrounding what represents the semantic definition of State aid, granted by the States or coming from State resources. The innovation brought by the European Commission was to establish a new subcategory for the term - presumed State aid. We discuss whether this type of aid can be fitted into the control by and decisional standards of the European Commission from a purely objective standpoint. The judgment leads us to reflect on the role played by the Commission regarding the evolution of the concept of State aid. However, this evolution, as an update of the directions of Article 107(1) TFEU, must take into consideration a methodology that necessarily goes through a path aimed at the market analysis based on the economic and social context of the State in question. The answer must be in accordance with the objectives and purposes of Community law and this does not represent a literal exegesis of the legal text. Keywords: Presumed State aid; Circumstantial interpretation; Objective and subjective concept of aid.

The Application of State Aid Rules to Markets Subject to Legal Monopolies · Case C-385/18 P Arriva Italia · Annotation by Federica Maldari journal article

Annotation on the Judgment of the Court of Justice of the European Union (Second Chamber) of 19 December 2019 in Case C-385/18 P Arriva Italia Srl and Others v Ministero delle Infrastrutture e dei Trasporti

Federica Maldari

European State Aid Law Quarterly, Volume 19 (2020), Issue 1, Page 66 - 73

The Case at issue provides a guidance on the notions of advantage and distortion of competition for the purpose of classifying a State intervention as State aid, and a clarification on the application of the State aid rules to markets which are subject to legal monopolies. The Case arises from the Italian government’s intervention for the benefit of a State-owned operator in a serious financial situation, active in the railway and transport services sectors. In particular, the intervention concerns (i) the statutory allocation of € 70 million for the benefit of the operator and (ii) the transfer of the entire shareholding of the government in that operator, for no consideration, to another State-owned operator of the national railway infrastructure to restore the financial viability of the transferred company. Other public providers having an interest in the transferred company challenged the legality of those measures, arguing that they constitute State aid. Therefore, the Italian Council of State asked the Court of Justice for a preliminary ruling concerning the interpretation of Articles 107 and 108(3) TFEU in respect to the afore-mentioned measures. Keywords: Legal Monopolies; Exclusive Rights; Transport Sector; State-Owned Operator.

ICSID Trumps State Aid in the UK but Uncertainty Remains Regarding Enforcement of New York Convention Awards in post-Brexit UK journal article

Ana Stanič

European State Aid Law Quarterly, Volume 19 (2020), Issue 2, Page 165 - 171

On 19 February 2020, the UK Supreme Court unanimously held that by virtue of Article 351 TFEU UK’s obligations under the ICSID Convention trump its duty of sincere co-operation under Article 4(3) TFEU to give effect to a State aid decision of the European Commission. In doing so, the UK Supreme Court also made clear that ICSID arbitral awards rendered by arbitral tribunals established pursuant to intra-EU BITs and ECT will be enforced in the UK. Whether in post-Brexit UK enforcement of intra-EU BITs and ECT arbitral awards will be refused on the grounds of being contrary to EU State aid law if sought pursuant to the terms of the New York Convention remains unclear given that State aid currently forms part of the on-going negotiations between the UK and EU regarding their future relations. Keywords: Micula, State aid, ISDS, Achmea, duty of sincere cooperation, public policy

The SURE Initiative, Short-time Work Compensation, and State Aid journal article

Hans Arno Petzold

European State Aid Law Quarterly, Volume 19 (2020), Issue 2, Page 161 - 164

The European Commission has put forward a proposal for a Council regulation aimed at ‘temporary Support to mitigate Unemployment Risks in an Emergency (SURE) following the COVID-19 outbreak’. This is not the place to discuss political or financial implications of the idea of a Basic European Unemployment Insurance. But it gives the opportunity to have a look at options for short-time work compensation, based on a case study of the German model, and the State aid relevance of such compensation. Keywords: COVID-19, SURE Initiative, short-time work Ccmpensation, State aid, selectivity, Germany