Federico Fichera

European State Aid Law Quarterly, Volume 20 (2021), Issue 4, Page 479 - 491

Digital companies, on which contemporary economies are largely based, rely heavily on intangible assets and data processing. They are also able to carry out their activity without a physical presence in the market, which creates a separation between the country where these companies make their profits and the country in which those profits are taxed. It has thus become important to develop an efficient strategy to tax these operators. In 2018, the European Union made an attempt to do so and the Commission introduced a proposal for a directive on the introduction of a Digital Service Tax (DST). Due to lack of the required unanimity in Council, such a proposal was not adopted. In the meantime, however, some Member States have introduced their own national DSTs, clearly inspired by the Commission's proposal. This paper investigates whether such fiscal measures constitute State aid and, in light of recent case-law, it concludes that this is probably not the case. However, in consideration of the peculiarities of such taxes, it is argued that they might still be found to trigger Article 107(1) TFEU in accordance with said jurisprudence. From a broader perspective, it is also argued that the approach used by the CJEU when ruling on fiscal aid should be less formalistic and should give more consideration to the potential effect that these could have on competition within the Internal Market. Keywords: Digital Service Tax; digital taxation; Fiscal State aid; GAFA; selectivity.

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.

Andreas Bartosch

European State Aid Law Quarterly, Volume 20 (2021), Issue 4, Page 507 - 511

A recent line of jurisprudence as to the dichotomy of what is an economic versus a non –economic activity has, bizarrely so, gone completely unnoticed by commentators. This article seizes the opportunity to present the author´s view why, whilst formally repeating an all-too-well-known line of jurisprudence, the way the Courts have carried out their analysis in fact brings quite some degree of common sense when looking at this very analysis. Keywords: jurisprudence; economic advantage; State aid conditions; State control

Marijana Liszt

European State Aid Law Quarterly, Volume 20 (2021), Issue 4, Page 586 - 589

Floris Fonteyn, Wout De Cock

European State Aid Law Quarterly, Volume 20 (2021), Issue 4, Page 585 - 586

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.

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.

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

Anikó Keller, Sam Baldwin

European State Aid Law Quarterly, Volume 19 (2020), Issue 2, Page 235 - 238

Wout De Cock

European State Aid Law Quarterly, Volume 19 (2020), Issue 2, Page 232 - 235