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Recovery of Unlawful Aid in Case of Insolvency journal article

Stefania Bello, Germano Guglielmi

European State Aid Law Quarterly, Volume 19 (2020), Issue 4, Page 440 - 451

The provisions on State aid laid down by the TFEU aim at preventing that public intervention in the economy could affect trade and distort competition to an extent contrary to the common interest. To this end, the Commission may order Member States to recover State aid granted in breach of EU law. This article focuses in particular on the specific case of aid recovery from insolvent beneficiaries. The Commission has always taken a very rigorous approach on this matter, requiring the winding-up of the beneficiary and the exit from the market where it is not able to reimburse the total amount of the recovery, regardless of the circumstances of the case. The Recovery Notice adopted in 2019 confirmed the rigid position taken by the Commission towards insolvent beneficiaries. The main purposes of this article are, firstly, to assess the approach adopted by the Commission and, secondly, to investigate the existence of the possibility for the Member State to behave as a private creditor in recovering the unlawful aid, or to suspend the recovery procedure in order to examine a plan to relaunch the activities of the insolvent beneficiary. Keywords: Recovery Notice; unlawful aid; State aid recovery; insolvent beneficiaries


A New Boost to National Recovery? · Case C‑349/17 Eesti Pagar · Annotation by Svein Terje Tveit journal article

Annotation on the Judgment of the Court (Grand Chamber) of 5 March 2019 in Case C‑349/17 Eesti Pagar AS v Ettevõtluse Arendamise Sihtasutus, Majandus- ja Kommunikatsiooniministeerium.

Svein Terje Tveit

European State Aid Law Quarterly, Volume 18 (2019), Issue 2, Page 186 - 191

On 5 March 2019, the Grand Chamber of the Court of Justice of the European Union (CJ) issued an important ruling clarifying the scope of the national authorities’ obligation to recover unlawful State aid and the test for ‘incentive effect’ — a requirement for an aid measure to benefit from the General Block Exemption Regulation (GBER). The CJ confirms that national authorities must recover unlawful State aid also in cases where the aid is granted (wrongfully) under the GBER as regional investment aid and the Commission has not adopted any Decision. The aid beneficiary may not rely on the principle of protection of legitimate expectations even if the granting authority had recommended the aid beneficiary to apply for aid knowing that work on the project had begun before the aid application was submitted. In cases where the EU rules on limitation period and interests are not directly applicable, national rules apply, so that the national authorities must seek full recovery of the unlawful aid and thereby ensure the effectiveness of State aid rules. Keywords: GBER; Recovery; National enforcement; Unlawful aid; National legal basis.


The Commission’s New Recovery Notice journal article

A Handbook for the Recovery of Unlawful and Incompatible Aid

Simone Donzelli

European State Aid Law Quarterly, Volume 18 (2019), Issue 4, Page 528 - 539

In July 2019, following a public consultation, the European Commission adopted a new notice on the recovery of unlawful and incompatible aid, replacing the previous 2007 Notice. The new Recovery Notice represents the state of the art of the existing legislation and Case law about recovery policy. This article introduces the key topics of the Recovery Notice, from the general principles to infringement proceedings, passing through some crucial issues such as the identification of the beneficiaries, the quantification of the aid and recovery in the context of insolvency proceedings. Selected comments from the public consultation are also presented, analysed and discussed. The article, in line with the Recovery Notice, stresses the central role of cooperation between the Commission and the Member States to implement recovery Decisions and concludes that the Recovery Notice is a comprehensive tool to enforce State aid rules in line with the current regulatory framework and Case law of the Union Courts. Keywords: Recovery; Unlawful aid; Incompatible aid; Infringement; Insolvency.


ARTICLES - STATE AID AND NATIONAL JURISDICTIONS ∙ Recovering Unlawful and Incompatible Aids by National Courts: CELF and Scott/Kimberly Clark Cases journal article

Denis Jouve

European State Aid Law Quarterly, Volume 16 (2017), Issue 3, Page 367 - 376

In CELF and Scott/Kimberly Clark cases, the Court of Justice clarified the role and the power of national courts to recover unlawful State aids. This fundamental role to protect individuals’ rights varies depending on Commission intervention. When the Commission has issued a final decision, national courts become the guardian of this decision, they have to control the execution in national law. In this situation, their room for manoeuvre is reduced. Pending a final Commission decision, it is for the national court to safeguard the rights of individuals and the effectiveness of Article 108(3) of the Treaty. Therefore, national courts shall take all relevant measures in order to protect individuals’ rights and to stop unlawfulness. It is forced to act even if Commission has decided on State aid compatibility but it has more freedom and it is possible to not order recovery. Keywords: Recovery; Unlawful Aid; Incompatible Aid; National Courts; CELF; Scott/Kimberly Clark.


DHL Leipzig-Halle  ∙ Case T-452/08 ∙ Annotation by Daniel Harrison journal article

Developments since the Judgment of the General Court in DHL Leipzig-Halle

Daniel Harrison

European State Aid Law Quarterly, Volume 16 (2017), Issue 3, Page 487 - 494

As the case of DHL-Leipzig Halle demonstrated, the possibility that contractual measures implementing an unlawful aid measure are invalid and unenforceable can give rise to a curious paradox: where the State assumes a contingent liability that has not yet crystallised, unenforceability of the contractual "advantage" may mean that unlawful aid is, like Schrödinger's cat, both present and absent at the same time. This article looks at the two cases since DHL Leipzig-Halle that have cited the judgment, before considering other areas in which contractual unenforceability of State aid measures can impose adverse – and often unfair – consequences on parties that have received no advantage or benefit from the aid measure in question: State guarantees and warranties and indemnities given to buyers of privatised businesses. Keywords: Unlawful Aid; State Guarantee; Borrower's Liabilities; Warranties and Indemnities; Privatisation; DHL Leipzig-Halle; Aer Lingus.


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