Caroline Buts, Mychal Langenus, Karen Donders

European State Aid Law Quarterly, Jahrgang 16 (2017), Ausgabe 4, Seite 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.

Saturnina Moreno González

European State Aid Law Quarterly, Jahrgang 16 (2017), Ausgabe 3, Seite 340 - 353

This work illustrates the Commission’s initial position and the evolution of EU case law regarding “regional, geographical or territorial” selectivity in tax matters, the issues raised by said case law and the interpretation and application made by Spanish judicial courts in this respect. Keywords: Regional Selectivity; Tax Benefit; Symmetrical and Asymmetrical Distribution of Tax Competences; Right of Proof.

Phedon Nicolaides

European State Aid Law Quarterly, Jahrgang 16 (2017), Ausgabe 4, Seite 527 - 536

The boundaries of the concept of economic activity are constantly shifting. This paper examines the case of schools run by the church and funded by the State. The Court of Justice concluded that wholly State-funded education is not economic in nature. The paper criticises this approach of the Court. The source of funding should not have been the decisive criterion, for the simple reason that State aid to enterprises is also provided by the State. The decisive criterion should have been whether the purpose of the funding was to support an activity which was intended to be offered for remuneration. Keywords: Economic Activity; State Resources; Public Education.

Caroline Buts, José Luis Buendía Sierra

European State Aid Law Quarterly, Jahrgang 16 (2017), Ausgabe 4, Seite 509 - 511

Eugene Stuart

European State Aid Law Quarterly, Jahrgang 16 (2017), Ausgabe 2, Seite 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.

Luca Rubini

European State Aid Law Quarterly, Jahrgang 16 (2017), Ausgabe 4, Seite 643 - 644

European State Aid Law Quarterly, Jahrgang 16 (2017), Ausgabe 4,

Cees Dekker

European State Aid Law Quarterly, Jahrgang 16 (2017), Ausgabe 2, Seite 154 - 163

On 29 April 2015, the European Commission decided on several notified measures, ruling that in none of those cases State aid was involved because, as the accompanying press release stated, they were unlikely to have a significant effect on trade between Member States. According to the press release, the decisions give additional guidance on how to determine which cases should be assessed by the Commission and which should not, to allow the Commission to focus on cases with a larger impact on the internal market. A couple of decisions in 2016 followed the same line of reasoning. This article discusses the question of how these decisions relate to the Court’s case law and the Commission’s own practice regarding the criterion ‘effect on trade between Member States’ laid down in Article 107(1) TFEU. It will also explore to what extent these decisions give actual clarity on the application of this criterion and if there is a better alternative to reduce the workload of the national authorities and the Commission. Keywords: Interstate Trade; De Minimis; Appreciable Effect; Notice on the Notion of State Aid.

Joanna Goyder, Margot Dons

European State Aid Law Quarterly, Jahrgang 16 (2017), Ausgabe 3, Seite 418 - 430

Damages claims based on State aid law infringements may be brought in a number of situations. There is an EU law cause of action, and sometimes also a national law basis, for claims by competitors of the aid recipient, or by third parties, against the Member State or other body which granted the aid. Competitors may also claim damages from the beneficiary, but such claims can only be brought if national law provides a cause of action. Finally, the recipient itself may claim damages from the granting Member State or other body, but an EU law cause of action will normally not be available, so such a claim will also generally have to be based on national law. All these types of damages claim are rare in practice, and even more rarely successful. The main reason for this appears to be the difficulty for claimants to prove causation and to quantify their loss. Keywords: Damages Claims; Infringements; Enforcement Notice; National Courts.

Jose Luis Buendía Sierra, Miguel Ángel Bolsa Ferruz

European State Aid Law Quarterly, Jahrgang 16 (2017), Ausgabe 3, Seite 408 - 417

The article explores the powers and duties of national courts when they enforce EU State aid law, particularly when, by virtue of the stand-still obligation pursuant to Article 108(3) of the Treaty on the Functioning of the European Union, they are faced with the assessment of whether a national measure constitutes illegal State aid. It also analyses a number of mechanisms or tools available in this context for national courts to cooperate with the European Commission and the European Courts, with the primary objective of preventing contradictory decisions or judgments rendered by different authorities at national and EU level. In this vein, the article also critically reviews the 2009 Commission Notice on the enforcement of State aid by national courts, which in the authors’ view sometimes goes beyond what is required by the applicable case law. The scope of measures available for national judges is certainly much wider than the scope of measures imposed on national judges. Keywords: Powers and Duties of National Courts; 2009 Commission Notice; State Aid Enforcement.