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Nürburgring: Limited Scope to Challenge the Competitive Purchase of Assets That Have Received Aid · Cases T-353/15 NeXovation/European Commission and T-373/15 Ja zum Nürburgring/European Commission · Annotation by Irene Moreno-Tapia Rivas and Victoria Riv journal article

Annotation on the Judgments of the General Court (First Chamber, Extended Composition) of 19 June 2019 in Cases T-353/15 NeXovation/ European Commission and T-373/15 Ja zum Nürburgring/European Commission

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.

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 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.

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 Swedish Aviation Tax: journal article

Some Initial Comments from a State Aid Perspective

Yvette Lind

European State Aid Law Quarterly, Volume 19 (2020), Issue 3, Page 290 - 296

The article concerns the Swedish aviation tax which was introduced in 2018. A tax policy approach is applied to not only consider tax technicalities but also the ideals and goals of the tax from the perspective of the Swedish legislature. Resulting in an inclusion of not only legal aspects but also a consideration of how politics and economics influences the design of such a tax. The author concludes that there are several potential State aid problems with the present design of the tax, eg too low tax rates in order to fulfil its environmental policy objective, an exemption of transit and transfer passengers that distorts the competition between airlines and which is not justified or exempted from State aid rules. Keywords: aviation taxes, fiscal State aid, emission offsetting, carbon offset, polluter pays principle, Sweden

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

Illegal Aid Grafted to Public Service Contracts · Case T-292/17 Région Île-de-France · Annotation by Jakub Kociubiński journal article

Annotation on the Judgment of the General Court (First Chamber) of 12 July 2019 in Case T-292/17 Région Île-de-France v European Commission (Bus Services)

Jakub Kociubiński

European State Aid Law Quarterly, Volume 19 (2020), Issue 2, Page 199 - 204

The subsidy scheme for certain transport undertakings in Île-de-France has been found by the European Commission to be unlawful State aid but ultimately compatible with the Internal Market. Yet, breach of the obligation to notify, declared in the Commission's decision, have resulted in its repeal by national courts and with subsequent adoption of a recovery order of previously received subsidies. Which in turn has led to (unsuccessful) action for the annulment of the Commission's decision in an attempt to eliminate the original legal basis for recovery. The following issues were raised: grounds for classifying a measure as new aid; extent of the obligation to state reasons; the fulfilment of selectivity and advantage criteria.

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