Francesco Maria Salerno, Federico Macchi

European State Aid Law Quarterly, Volume 17 (2018), Issue 2, Page 311 - 315

The case in comment illustrates the application of State aid rules by a national court. Moreover, the case deserves to be brought to the attention of a wide readership because it concerns a rare case of award for damages to the beneficiary of the aid. By adjudicating in favour of the beneficiary, the Italian court recognized the peculiarities of the case at issue. At the same time, the ruling raises general questions of consistency with EU law, which are likely to become even more salient as the cooperation between Commission and national courts in the enforcement of State aid rules increases. Keywords: National courts; Damages; State liability; Legitimate expectations.

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.

Nicole Robins, Hannes Geldof

European State Aid Law Quarterly, Volume 17 (2018), Issue 4, Page 494 - 508

The EU’s State aid modernisation reforms introduced a role for ex post evaluations of aid schemes. State aid evaluation provides an opportunity to continuously improve the effectiveness and efficiency of aid schemes to ensure that their positive impact outweighs possible distortions to competition and trade. Traditionally, the role for an extensive analysis of the impact of aid on competition has been limited compared with other areas of competition policy, such as merger control, and assessments of anticompetitive agreements or abuse of dominance. The European Commission therefore asked Oxera to develop an economic framework that can be used to assess the competitive effects of aid, and to gain further insights into the actual impact of aid on competition. Oxera’s study may have significant implications for future State aid control. This article discusses the economic framework developed by Oxera as well as insights from Oxera’s study into the main drivers of the likely impact of aid on competition.

María Muñoz de Juan

European State Aid Law Quarterly, Volume 17 (2018), Issue 4, Page 483 - 493

Ex post monitoring is a counterpart of the State aid decentralisation process and, as such, is a cornerstone of the current State aid control system. The application of State aid rules is being increasingly decentralised thanks to the significant use of the block exemption Regulations by the Member States. However, this does not mean that the Commission is giving up its powers and obligations under the Treaty. On the contrary, it closely follows — through ex post controls — how State aid measures are implemented by the Member States. This Commission-level monitoring exercise aims to correct the detected irregularities both for the past and for the future and helps to improve State aid rules. It has a measurable deterrent effect. Keywords: State aid; enforcement; monitoring; ex post control; SAM; decentralisation; block exemption regulation.

Nick Wright

European State Aid Law Quarterly, Volume 17 (2018), Issue 4, Page 525 - 533

The UK has long regarded evaluation as a fundamental part of the policy development cycle and has had a broadly positive experience in meeting the new State aid evaluation requirements. This article sets out the UK’s approach to policy evaluations and considers the opportunity that the State aid requirements present to improve policies, but also notes that there can be a challenge in applying the Commission’s favoured counterfactual methodology, which might not be appropriate in all cases. The article recommends that the Commission continues to work with Member States to develop good practice, including accepting alternative methodologies when they are robust. This will help to ensure that the State aid evaluation requirements support both the effective delivery of policy, and support State aid compliance. The article concludes that, while there is always scope for improvement in the Commission’s approach, the requirements provide a real incentive for public authorities to accurately measure the effectiveness of State aid interventions in markets. This in turn facilitates evidence-based policy making, which should lead to better targeted measures that generate better policy outcomes. Keywords: Evaluation methodologies; State aid Modernisation; Effectiveness of aid.

Michele Giannino, Federich Romby

European State Aid Law Quarterly, Volume 17 (2018), Issue 3, Page 338 - 352

The purpose of this article is to provide a comprehensive review of the European Commission’s approach in assessing whether compensation awarded to airports for the provision of Services of General Economic Interest (SGEIs) complies with the EU State aid rules. The article analyses the defensive strategies open for national authorities to claim that airports public service compensation packages are compatible with the internal market. In that regard, the article considers the Altmark doctrine and the compatibility conditions for the application of the SGEI exception in Article 106 TFEU. Then it critically compares the strong and weak points of each of these strategies and also dwells on which factors national authorities have to adduce to prove the compatibility of airport aid. Bearing in mind the difficulties for national authorities to satisfy all the conditions for the application of the Altmark doctrine, the article suggests that the SGEI exception should be the optimal strategy to obtain regulatory clearance of public service compensation to airport.

Sarah Beeston, Pim Jansen, Kiek Brink

European State Aid Law Quarterly, Volume 17 (2018), Issue 3, Page 328 - 337

The European Commission sees the ports sector as a driving force for economic growth and regional development in Europe. It has recently developed various policy initiatives in this sector and taken measures whereby State aid control forms the key element. The Commission has opted for an approach based on two interlinked pillars. First, the Commission intends to create a (more) level playing field among European Union Member States, by using State aid rules to curb tax benefits for (public) companies in the ports sector. Second, further to the State Aid Modernisation Programme, the Commission is, to an increasing extent, pursuing an active European economic policy in the ports sector by means of exemptions from the prohibition of State aid. As a result, certain aid measures targeting market failures and objectives of a common European interest are permissible. In this article we will provide an analysis of recent developments and place them in their legal and policy-related context. We will specifically discuss the impact of these developments on seaports in the Netherlands.

Phedon Nicolaides

European State Aid Law Quarterly, Volume 17 (2018), Issue 3, Page 368 - 374

The amount of State aid in a loan or guarantee is not necessarily equal to the principal of the loan or the guaranteed amount. Moreover, the liability of the State and the risk borne by the State depend on the rights or collateral that the State secures before it grants a loan or guarantee. For this reason, State aid law needs a third concept to describe the behaviour of the State apart from that of ‘public authority’ or ‘private investor’. That third concept is labelled here as ‘ex-ante creditor’. It applies to those sums over which the State can exercise a claim without expecting ex-ante to receive a profit. Past loans or guarantees that contain State aid should be ignored, as prescribed by the Court of Justice, only when the State has no prospect of recovering any amount that is due to it or when it has no claim to exercise against the borrower who is the aid recipient. Keywords: Private investor; Private creditor; Loans; Guarantees; Past State aid.

European State Aid Law Quarterly, Volume 16 (2017), Issue 4,

Caroline Buts, José Luis Buendía Sierra

European State Aid Law Quarterly, Volume 16 (2017), Issue 4, Page 509 - 511